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NAVAL WAR COLLEGE 



International Law 
Situations 

WITH SOLUTIONS AND NOTES 



1926 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON 

1928 



BREFACE 



Since 1914 the publications of the Naval War College 
on international law have contained documents relating 
particularly to maritime affairs in the time of war. 
During this period various topics and situations have 
been discussed at the college. In the present volume some 
of these topics and situations are presented. 

These discussions upon international law were, as in 
recent years, conducted by George Grafton Wilson, 
LL. D., professor of international law in Harvard Uni- 
versity, under the auspices of the War College authorities. 

J. R. Poinsett Pringle, 
Rear Admiral, United States Navy, 

President Naval War College, 



December 31, 1927. 



in 



CONTENTS 

Page 

Situation I. — Continuous voyage 1 

Solution 1 

Notes 1 

Naval War College discussions 1 

Treaty of 1674 2 

Eighteenth century comment . 2 

Early nineteenth century 4 

Lord Stowell's opinions 5 

Robinson's comment 6 

Kent's opinion 6 

American Civil War 6 

The " Springbok " 8 

The Institute of International Law 10 

Hall's opinion 10 

South African War 11 

Report in 1905 14 

International Naval Conference, 1908-1909 15 

Parliamentary discussion 17 

Regulations in 1914 17 

Declaration of London and World War 18 

Restraints on commerce 22 

Official consignees 24 

Retaliatory measures 24 

British blockade in World War 25 

Discussion in British House of Commons 26 

The rationing system 29 

Extension of doctrine, 1914-1918 29 

Liability on account of substitution 33 

Conclusion 37 

Solution 38 

Situation II. — Submarines 39 

Conclusion 39 

Notes 39 

Treaty in relation to the use of submarines and 

noxious gases in warfare 39 

Queries as to articles 40 

v 



VI CONTENTS 

Situation II. — Submarines — Continued. 

Notes — Continued. Page 

Preparation of treaty on submarines 44 

Discussion of treaty 46 

Drafting committee— 47 

Resolution I 48 

" Merchant vessel " and " capture " 48 

Resolution II 50 

" Commerce destroyer " : 54 

Article IV 54 

Presentation to conference : 55 

Admiral Knapp's comment 55 

Report of American delegation 57 

Summary 57 

Early opinions 59 

German practice, 1914-1918 60 

American discussion 61 

Review of proposed treaty 62 

Conclusion 64 

Situation III. — Angary : 65 

Conclusion 65 

Notes 65 

Angary 65 

Neutral railway material in time of war 65 

The World War 68 

Law of Turkey, 1916 68 

Lawrence's opinion 71 

United States and Spain, 1902 72 

United States and Turkey, 1830 72 

German treaties 72 

Treaty provisions in general 73 

Franco-Prussian War, 1870 73 

British regulations, 1913 : 77 

Albrechf s opinion 78 

Forms of angary 78 

Requisition of Dutch ships, 1918 79 

The taking over by the United States of Dutch 

ships . 84 

Action of other States 87 

General 87 

Conclusion 87 



CONTENTS VII 

Page 

Situation IV. — Aircraft in neutral ports 89 

Solution 89 

Notes 89 

Development of regulations 89 

Discharge of projectiles from balloons, Hague reg- 
ulations 90 

Attitude toward declaration of 1899 90 

Hague discussion, 1907 90 

General restrictions 93 

Attitude toward declaration of 1907 93 

Other restrictions on use of aircraft 93 

Institute of International Law, 1911 94 

Attitude of the Interparliamentary Union 96 

Development of aircraft 99 

Internment in World War 100 

Italian decree, 1914 101 

Commission of jurists, 1923 102 

Aircraft on board vessels of war , 104 

Report of commission of jurists, 1923 105 

Conclusion of the report of the commission 105 

Neutral jurisdiction 106 

XIII Hague Convention, 1907 108 

Transfer in neutral jurisdiction 110 

Unseaworthy vessels of war 110 

Washington conference, 1921-1922 111 

Status of rules as to aircraft in peace 113 

World War practice 114 

Aircraft on vessels of war 114 

Fuel and supplies 115 

Fighting strength 116 

Conclusion 116 

Solution H7 



INTERNATIONAL LAW SITUATIONS 

WITH SOLUTIONS AND NOTES 



Situation I 

CONTINUOUS VOYAGE 

States X and Y are at war. Other States are neutral. 
The Alta, a private merchant vessel lawfully flying the 
flag of State Z, is bound for a port of State B, a State 
bordering on State Y. The Alta is visited on the high 
sea by a cruiser of State X. The cruiser finds on board 
fodder suitable for stock raised in State B. The supply 
of this fodder would, however, make possible the expor- 
tation of additional animal products from State B to 
State Y. The cruiser captures the Alta, alleging con- 
tinuous voyage through substitution. Should the capture 
be sustained? 

SOLUTION 

The capture should not be sustained under the doctrine 
of continuous voyage. 

NOTES 

Naval War College discussions. — The doctrine of con- 
tinuous voyage has received consideration at the Naval 
War College from time to time, and particularly in 1901 
(International Law Situations, pp. 38-85) and 1905 (In- 
ternational Law Topics and Discussions, pp. 77-106). 
From the discussion of 1905 the conclusion was drawn 
that — 

The actual destination of vessels or goods will determine their 
treatment on the seas outside of neutral jurisdiction. 



2 ' CONTINUOUS VOYAGE 

Treaty of 167 1^} — Early treaties contained provisions in 
xegard to commerce; e. g., one to which there have been 
many references is the treaty between Great Britain and 
the United Provinces, December 1-11, 1674, Article II: 

Nor shall this freedom of navigation and commerce be violated, 
or interrupted by the reason of any war ; but such freedom shall 
extend to all commodities which might be carried in time of 
peace ; those only excepted, which are described under the name 
of contraband goods, in the following articles. 

Eighteenth century comment. — The publications of the 
Navy Records Society relating to the law and custom of 
the sea, 1649-1767, edited by Marsden, quote from British 
documents : 

1158. Holdemesse to YorJce as to the Dutch carrying on the 
colonial trade of the French. — 8. P. Foreign, Holland 481* 
21st July 

* * * I have enlarged the more upon this point, as I could 
wish that it were better understood upon the changes of Rotter- 
dam and Amsterdam, as I am convinced that they serve more to 
keep up the clamour against the English than other points of a 
more difficult nature — I mean the proper bounds that ought and 
must be set between interrupting the real fair trade of the Dutch, 
and suffering them to carry on the trade of the enemy in a manner 
that passes the bounds of the neutrality they profess. And this 
brings me to the last article I am to treat of upon this subject; 
I mean the visiting of Dutch ships at sea, and effectually prevent- 
ing them from supplying the French colonies with necessaries, and 
carrying on for them a trade which they can not support them- 
selves in time of war, and to which the Dutch are not admitted in 
time of peace. This is a point of real importance to the King's 
service, and of so great consequence that I am persuaded his 
Majesty will never be induced to desist from his just pretension 
* * * (Vol. 11, p. 382.) 

Later in 1762, Murray, one of the law officers, wrote : 

* * * I think the order desired by the Dutch insidious, and 
the more improper as it proceeds upon a kind of reciprocity with 
Spain. I am of opinion that it should not be granted. I have 
thrown upon paper a sketch of the sense of an answer which I 

1 Some of this discussion may be found in 1921 Proceedings Am. Soc. 
Int. Law, pp. 45-55. 



EIGHTEENTH CENTURY COMMENT 3 

send your Lordship inclosed. If you approve the substance, you 
will change the form as you think fit. * * * 

Dated 1st May, 1762. 

(Ibid. p. 397.) 

A memorandum given by France for guidance of 
Dutch merchants and published by authority in the 
Utrecht Gazette, July 8, 1756, states a principle revived 
by Great Britain in 1915 : 

Art. 7. If the Dutch ships carry any goods or merchandise of 
the growth or manufacture of the enemies of France, they shall 
be esteemed good prizes ; but the ships shall be discharged. 

N. B. — The regulation made in the last war permitted the Dutch 
to trade with the enemy, in conformity to the treaty of commerce 
made with the States in 1739. But as the King revoked that 
treaty at the conclusion of the war the goods of the growth or 
manufacture of England, or belonging to the English, which shall 
hereafter be found on board a Dutch ship, shall be declared good 
prize, unless the 14th article of that treaty should hereafter be 
renewed. (Marriott, Case of the Dutch Ships, p. 74.) 

The rule is that if a neutral ship trades to a French colony, 
with all the privileges of a French ship, and is thus adopted and 
naturalized, it must be looked upon as a French ship and is liable 
to be taken. (Lord Mansfield in Berens v. Rucker, 1760, K. B. 1 
Wm. Black, 314.) 

The problem of continuous voyage, as it was under- 
stood in the middle of the eighteenth century, may be in- 
ferred from the statement of the case of Hillbrands 
contra Harden, 1761 : 

By the treaties of alliance betwixt Great Britain and Holland, 
particularly that of 1674, the liberty of navigation and commerce 
is secured to the one state even with the enemies of the other; 
and, excepting contraband goods, that no ship of either nation 
shall be searched for goods belonging to the enemies of the other, 
and that they shall be free to carry all goods which they can 
lawfully carry in time of peace, even supposing the whole cargo 
should belong to an enemy. 

In the present war betwixt Britain and France, the power of 
the latter at sea has been so reduced as to oblige them for safety 
to carry on their whole commerce in Dutch bottoms. And if this 
plan can be carried into execution under color of the above-men- 
tioned treaties, the British merchants lie under a great disad- 
vantage; for their cargoes lie open to capture, while the French 
cargoes are free from it. 



4 CONTINUOUS VOYAGE 

By edicts of the King of France, no goods can be exported from 
their colonies but in French bottoms. At present these edicts 
are suspended and the commodities of the French colonies are 
imported into France in Dutch bottoms. At least Dutch ships 
are employed within the narrow seas where there is the greatest 
risk of capture * * *. In short, French goods in a Dutch 
ship ought to be secure, where the Dutch ship is preferred as the 
better sailor, or as being hired at a cheaper rate. But where 
none of these circumstances occur, and that the Dutch ship is 
preferred for no other reason than to protect from capture, it 
ought not to have the benefit of the treaties, (Karnes, Select De- 
cisions, 242.) 

Early nineteenth century. — Vessels of one state were 
sometimes allowed to carry on trade between their own 
ports and the colonial ports of another state. This trade 
was at times permitted to continue without molestation in 
the time of war, even though one belligerent had cut off 
the colonies of the other belligerent. Sometimes neutrals 
might be permitted to enter into previously closed colo- 
nial trade. These neutrals might also be engaged in 
trade with the belligerent country. Some merchants ac- 
cordingly conceived the idea of bringing goods from the 
colony to a neutral state, and after discharging and pass- 
ing the goods through customs there, they then reloaded 
and carried the goods to the mother country. For ex- 
ample, during the war between Great Britain and Spain 
in early nineteenth century transportation by the way of 
the United States from Spanish colonies to Spain under 
the United States flag was common. Goods were some- 
times carried from the colonial Spanish port of La 
Guayra to Marblehead in the United States, were there 
entered under bond during slight repairs to the vessel, 
and then reshipped for Bilboa. On this last stage of the 
journey an American vessel was captured and taken to a 
British prize court, as engaged in trade between Spain 
and her colonies. Of this the court said : 

The act of shifting the cargo from the ship to the shore and 
from the shore back again to the ship does not necessarily amount 
to the termination of one voyage and the commencement of an- 
other. It may be wholly unconnected with any purpose of im- 



STOWELL'S OPINIONS O 

portation into the place where it is done. * * * The truth may 
not always be discernible, but when it is discovered it is according 
to the truth and not according to fiction that we are to give the 
transaction its character and denomination. If the voyage from 
the place of lading be not really ended, it matters not by what acts 
the party may have evinced his desire of making it appear to 
have ended. (The William, 1802, 5 Rob. p. 387.) 

This principle is related to the so-called rule of 1756 
and sets forth the idea of continuous voyage as under- 
stood at the beginning of the nineteenth century. 

Lord StoweJVs opinions. — Sir William Scott, Lord 
Stowell, in the case of the Immanuel (1799), said: 

But without reference to the accidents of the one kind or the 
other, the general rule is that the neutral has the right to carry 
on, in time of war, his accustomed trade to the utmost extent of 
which that accustomed trade is capable. Very different is the 
case of a trade which the neutral has never possessed, which he 
holds by no title of use and habit in times of peace, and which, 
in fact, can obtain in war by no other title than by the success of 
one belligerent against the other, and at the expense of that very 
belligerent under who:: e success he sets up his title ; and such 
I take to be the colonial trade, generally speaking. (2 Rob. 197.) 

Christopher Robinson in 1804, in reporting Sir William 
Scott's decisions, and discussing condemnations based on 
the so-called rule of 1756, said : 

At that period there were no instructions, in which the principle 
was laid down ; yet then the court did not hesitate to come to a 
conclusion on the illegality of such a trade. (Appendix A, 4 
Rob. p. 8.) 

Closed trade regulations were common during the nine- 
teenth century. Even the coastwise trade of the United 
States was reserved to American vessels and later the 
same principle was extended to Porto Rico and the Phil- 
ippines after they were acquired in 1898. 

In 1810 Lord Stowell said in the case of the Luna — 

I can not admit that, because the port of St. Sebastian's borders 
on ports which are blockaded, that therefore it is less accessible 
than any other port ; the introduction of such a principle would 
have the effect of stretching out the limits of every blockade to an 
indefinite extent. (Edwards 190.) 



O CONTINUOUS VOYAGE 

Robinson's comment. — In commenting on continuous 
voyage in the early nineteenth century, Christopher Rob- 
inson, editor of British Admiralty Reports, said : 

There is one other remark, which the 'editor takes the opportu- 
nity of introducing here, as connected with that branch of the 
colonial principle which relates to continuous voyage. It is merely 
to point out to those, who may have occasion to observe upon the 
manner in which that extension has grown out of the original prin- 
ciple, a circumstance which appears to have hitherto escaped no- 
tice, viz, that it was in the first instance adopted as a rule of 
equitable construction in favour of neutral trade, in protection of 
that* part of a cargo, which had gone from Hamburgh to Bor- 
deaux, and was afterwards captured on the ulterior part of the 
voyage to St. Domingo. Those goods were contended to be liable 
to condemnation, under the instructions. They were excepted, 
^however, by the interpretation which the court adopted, that the 
touching at Bordeaux, accompanied with an entry, and the forms 
of exportation, did not create such an incorporation into the com- 
merce of France, as could render the destination of the continuous 
voyage liable to be considered, as between French ports only. 
(0 C. Rob. Note II.) 

Kent's opinion. — Chancellor Kent, in 1826, said: 

It is very possible that if the United States should hereafter 
attain that elevation of maritime power and influence which their 
rapid growth and great resources seem to indicate and which shall 
prove sufficient to< render it expedient for her maritime enemy (if 
such enemy shall ever exist) to open all his domestic trade to 
enterprising neutrals, we might be induced to feel more sensibly 
than we have hitherto done the weight of the argument of the 
foreign jurists in favor of the policy and equity of the rule. 
(Commentaries (a), p. 229.) 

American Civil War. — It was held in many cases be- 
fore the American Civil War that the destination of the 
cargo followed the destination of the vessel. During the 
Civil War the destination of the cargo and of the vessel 
was separated. The early ideas had in view the transport 
from a closed colonial port; the later extension was ap- 
plied to transport between neutral ports, if an ultimate 
enemy destination could be proven. As was said by the 
United States Supreme Court in the case of the Circassian 
in 1864: 



THE BERMUDA 7 

A vessel sailing from a neutral port with intent to violate a 
blockade is liable to capture and condemnation as a prize from the 
time of sailing, though she intends to call at another neutral port, 
not reached at time of capture, before proceeding to her ulterior 
destination. (2 Wall. 135.) 

As the doctrine of separation of liability of cargo and 
vessel had developed, this was applied in the case of the 
Bermuda in 1865^ in which Chief Justice Chase said : 

If by trade between neutral ports is meant real trade, in the 
course of which goods conveyed from one port to another become 
incorporated into the mass of goods for sale in the port of desti- 
nation ; and if by sale to the enemies of the United States is 
meant sale to either belligerent, without partiality to either, we 
accept the proposition of counsel as correct. 

But if it is intended to affirm that a neutral ship may take on 
a contraband cargo ostensibly for a neutral port, but destined in 
reality for a belligerent port, either by the same ship or by 
another, without becoming liable, from the commencement to the 
end of the voyage, to seizure, in order to the confiscation of the 
cargo, we do not agree to it. * * * 

It makes no difference whether the destination to the rebel port 
was ulterior or direct ; nor could the question of destination be 
affected by transshipment at Nassau, if transshipment was in- 
tended, for that could not break the continuity of transportation 
of the cargo. 

The interposition of a neutral port between neutral departure 
and belligerent destination has always been a favorite resort of 
contraband carriers and blockade runners. But it never avails 
them when the ultimate destination is ascertained. A transpor- 
tation from one point to another remains continuous so long as 
intent remains unchanged, no matter what stoppages or trans- 
shipments intervene * * * even the landing of goods and 
payment of duties does not interrupt the continuity of the voyage 
of the cargo, unless there be an honest intention to bring them 
into the common stock of the country. If there be an intention, 
either formed at the time of original shipment or afterwards, 
to send the goods forward to an unlawful destination, the con- 
tinuity of the voyage will not be broken, as to the cargo, by any 
transactions at an intermediate port. (3 Wall. 514.) 

This distinguishes the cargo and vessel and considers 
intention in relation to the ultimate destination of the 
cargo. 



8 CONTINUOUS VOYAGE 

In the case of The Peterhoff, in 1866, the Supreme 
Court of the United States said as to blockade : 

We must say, therefore, that trade, between London and Mata- 
moras, even with intent to supply, from Matamoras, goods to 
Texas, violated no blockade, and can not be declared unlawful. 

Trade with a neutral port in immediate proximity to the ter- 
ritory of one belligerent, is certainly very inconvenient to the 
other. Such trade, with unrestricted inland commerce between 
such a port and the enemy's territory, impairs undoubtedly and 
very seriously impairs the value of a blockade of the enemy's 
coast. But in cases such as that now in judgment, we administer 
the public law of nations, and are not at liberty to inquire what 
is for the particular advantage or disadvantage of our own or 
another country. We must follow the lights of reason and the 
lessons of the masters of international jurisprudence. (5 Wall. 28.) 

In the same case reference was made to the contra- 
band on board. 

And contraband merchandise is subject to a different rule in 
respect to ulterior destination than that which applies to mer- 
chandise not contraband. The latter is liable to capture only when 
a violation of blockade is intended ; the former when destined to 
the hostile country, or to the actual military or naval use of the 
enemy, whether blockaded or not. The trade of neutrals with 
belligerents in articles not contraband is absolutely free, unless 
interrupted by blockade; the conveyance by neutrals to belliger- 
ents of contraband articles is always unlawful, and such articles 
may always be seized during transit by sea. Hence, while articles, 
not contraband, might be sent to Matamoras and beyond to the 
rebel region, where the communications were not interrupted by 
blockade, articles of a contraband character, destined in fact to 
a State in rebellion, or for the use of the rebel military forces, 
were liable to capture, though primarily destined to Matamoras, 

The Springbok. — Much difference of opinion was called 
forth by the decision of the Supreme Court of the 
United States in 1866 by which the cargo of the Sprmg- 
ook, a vessel which had sailed from London to Nassau, 
was condemned, though the vessel w r as seized when sail- 
ing between two neutral ports. The vessel itself was 
released. In this case the court said : 

Upon the whole case we can not doubt that the cargo was 
originally shipped with the intent to violate the blockade; that 



THE SPKINGBOK 9 

the owners of the cargo intended that it should be transshipped 
at Nassau into some vessel more likely to succeed in reaching a 
blockaded port than the Springbok; that the voyage from London 
to the blockaded port was, as to the cargo, both in law and in 
intent of the parties, one voyage ; and that the liability to con- 
demnation, if captured during any part of the voyage, attached 
to the cargo from the time of sailing. (5 Wall. 1.) 

Writing after but speaking of the period just before 
the American Civil War, Sir Travers Twiss, agreeing 
with the law officers of the Crown, as to the case of the 
Springbok, said : 

Great Britain and the United States of America had until then 
been content to enforce against neutral merchants the confiscation 
of their property upon proof of some constructive attempt on their 
part to violate a blockade ; it has remained for the younger sister, 
under her extraordinary difficulties, to initiate the doctrine of a 
prospective intention, on the part of a neutral merchant, to vio- 
late a blockade, and to subject him to the confiscation of his 
property not upon the evidence of any present voyage of the ship 
and cargo, in which the ship and cargo have been intercepted, but 
upon the presumption of a future voyage of the cargo alone to a 
blockaded port, after it had been landed from the ship at a neu- 
tral port. (Continuous Voyage, 3 Law Mag. and Rev. 4th series, 
P- 1.) 

Many British authorities, as well as many continental 
writers, regarded the decision in the case of the Spring- 
bok as unsound. 

A formal statement in 1882, with the names of such dis- 
tinguished members of the Institute of International 
Law as Arntz, Asser, Bulmerincq, Gessner, Hall, De 
Martens, Pierantoni, Kenault, Eollin, Travers Twiss, de- 
clared the Springbok decision — 

subversive of an established rule of maritime warfare. * * * 
that it is extremely desirable that the Government of the United 
States of America, which has been on several occasions the 
zealous promoter of important amendments of the rules of mari- 
time warfare, in the' interests of neutrals, should take an early 
opportunity of declaring in such form as it may see fit, that it 
does not intend to incorporate the above propounded theory into 
its system of maritime prize law and that the condemnation of 
88941—28 2 



10 CONTINUOUS VOYAGE 

the cargo of the Springbok shall not be adopted as a precedent by 
its prize courts. 

Such a declaration was never made by the United 
States. 

The Institute of International Law 1 . — The Institute of 
International Law in 1882 included in the Regulations 
Concerning Prizes, article 44, a provision that : " In no 
case can the doctrine of continuous voyage justify con- 
demnation for violation of blockade." 

In 1896, however, the Institute said of contraband : 

Destination for the enemy is presumed when the shipment 
goes to one of the enemy's ports, or even to a neutral port which, 
from clear evidence or undeniable fact, is only a temporary stop- 
ping place in a commercial transaction having an enemy end. 
(Annuaire 1896, p. 231.) 

HalVs opinion. — Hall, the English authority, writing 

of the American extension of the doctrine of continuous 

voyage, said in 1884 in a note to the second edition of his 

International Law : 

During the American Civil War the courts of the United States 
gave a violent extension to the notion of contraband destination, 
borrowing for the purpose the name of a doctrine of the English 
courts, of wholly different nature from that by which they were 
themselves guided. As has already been stated (§ 234) it was 
formerly held that neutrals in a sense aided in the hostilities of a 
belligerent by taking advantage of permission given by him to 
carry on a trade which was forbidden to them in time of peace. 
Property engaged to such trade was therefore deemed to be con- 
fiscable. During the Anglo-French wars of the revolution traders 
foreign to France or Spain were permitted to trade between 
French and Spanish ports and French and Spanish colonies, com- 
merce with the colonies in question having before the war been 
restricted to trade with foreign ports and the colony. To evade 
the liability to condemnation in the English courts which entering 
into the new trade involved, neutral merchants endeavoured to 
give an air of innocence to their ventures by making a colourable 
importation into some port from which trade with the colony or 
the home country was permissible. Thus in the case of the Wil- 
liam, (5 Rob. 385), a cargo taken on board at La Guayra was 
brought to Marblehead in Massachusetts, it was landed, reem- 
barked in the same vessel with the addition of some sugar from 



SOUTH AFRICAN WAR 11 

the Havcmnafo, and within a week of its arrival was despatched 
to Bilboa. In this and in like cases the English courts condemned 
the property; but they were careful not to condemn until what 
they conceived to be the hostile act was irrevocably entered upon ; 
cargo was confiscated only when captured on its voyage from the 
port of colourable importation to the enemy country. The doc- 
trine upon which the English courts acted was called by Lord 
Stowell the doctrine of continuous voyage. 

By the American courts during the Civil War the idea of con- 
tinuous voyage was seized upon, and was applied to cases of con- 
traband and blockade. Vessels were captured while on their 
voyage from one neutral port to another, and were then con- 
demned as carriers of contraband or for intent to break block- 
ade. They were thus condemned, not for an act — for the act done 
was in itself innocent, and no previous act existed with wh'ch it 
could be connected so as to form a noxious whole — but on mere 
suspicion of intention to do an act. Between the grounds upon 
which these and the English cases were decided there was of 
course no analogy. 

The American decisions have been universa ly reprobated out- 
side the United States, and would probably now find no defenders 
in their own country. On the confession indeed of one of the 
judges then sitting in the Supreme Court, they seem to have been 
due partly to passion and partly to ignorance. " The truth is," 
says Mr. Justice Nelson, " that the feeling of the country was deep 
and strong against England, and the judges, as individual citizens, 
were no exceptions to that feeling. Besides, the court was not 
then familiar with the law of blockade" (p. 624, n. 1). 

The editor of the eighth edition of Hall, 1924, says of 
Hall's early position : 

This statement is not supported by the current American writ- 
ers on international law. 

South Africcm War. — The doctrine of continuous voy- 
age was put to the test through the shipment of goods on 
a German vessel, the Bundesrath, to a Portuguese port 
near the South African Republic, during the South Afri- 
can War in 1900. A British cruiser captured the Bundes- 
rath. The German ambassador protested, saying in a 
note of January 4, 1900 : 

With reference to the seizure of the German steamer Bundes- 
rath by an English ship of war, I have the honour to inform your 
excellency, in accordance with instructions received, that the 



12 CONTINUOUS VOYAGE 

Imperial Government, after carefully examining the matter and 
considering the judicial aspects of the case, are of opinion that 
proceedings before a prize court are not justified. 

This view is grounded on the consideration that proceedings 
before a prize court are only justified in cases where the presence 
of contraband of war is proved, and that, whatever may have 
been on board the Bundesrath, there could have been no contra- 
band of war, since, according to recognized principles x>f interna- 
tional law, there can not be contraband of war in trade between 
neutral ports. 

This is the view taken by the British Government in 1863 in 
the case of the seizure of the Springbok as against the judgment 
of the American prize court, and this view is also taken by the 
British Admiralty in their Manual of Naval Prize Law of 1866. 

The Imperial Government are of opinion that, in view of the 
passages in that manual : "A vessel's destination should be consid- 
ered neutral if both the port to> which she is bound and every inter- 
mediate port at which she is to call in the course of her voyage 
be neutral," and "the destination of the vessel is conclusive as to 
the destination of the goods on board," they are fully justified in 
claiming the release of the Bundesrath without investigation by a 
prize court, and that all the more because, since the ship is a mail 
steamer with a fixed itinerary, she could not discharge her cargo 
at any other port than the neutral port of destination. (Parlia- 
mentary Papers, Africa No. 1, 1900, Cd. 33, p. 6.) 

On the same date Lord Salisbury informed the British 
ambassador at Berlin that he was — 

entirely unable to accede to his (the German ambassador's) con- 
tention that a neutral vessel was entitled to convey without 
hindrance contraband of war to the enemy, so long as the port at 
which he intended to land it was a neutral port. (Ibid. p. 7, 

No. 18.) 

On January 10, 1900, Lord Salisbury wrote : 

It is not the case that the British Government in 1863 raised 
any claim or contention against the judgment of the United States 
prize court in the case of the Springbok. On the first seizure of 
that vessel, and on an ex parte and imperfect statement of the 
facts by the owners, Earl Russel, then Secretary of State for 
Foreign Affairs, informed Her Majesty's minister at Washington 
that there did not appear to be any justification for the seizure 
of the vessel and her cargo, that the supposed reason, namely, 
that there were articles in the manifest not accounted for by the 
captain, certainly did not warrant the seizure, more especially as 



SOUTH AFRICAN" WAR 13 

the destination of the vessel appeared to have been bona fide 
neutral, but that, inasmuch as it was probable that the vessel had 
by that time been carried before a prize court of the United 
States for adjudication, and that the adjudication might shortly 
follow, if it had not already taken place, the only instruction that 
he could at present give to Lord Lyons was to watch the pro- 
ceedings and the judgment of the court, and eventually transmit 
full information as to the course of the trial and its results. 

The prize court of the United States, in a long and considered 
judgment, decreed confiscation both of the vessel and the cargo. 
The owners applied for the intervention of Her Majesty's Gov- 
ernment, and forwarded in support of their application an opinion 
by two English counsel of considerable eminence. 

The real contention advanced in this opinion was that the goods 
were, in fact, dona fide consigned to a neutral at Nassau. It 
can not, therefore, be adduced in support of the doctrine now 
advanced by the German Government. But Her Majesty's Gov- 
ernment, after consulting the law officers of the Crown, distinctly 
refused to make any diplomatic protest or enter any objection 
against the decision of the United States prize court, nor did they 
ever express any dissent from that decision on the grounds on 
which it was based. 

The volume which is described in Count Hatzfeldt's note as 
" The Manual of Naval Prize Law of the British Admiralty," and 
from which Count Hatzfeldt quotes certain phrases as expressing 
the view of the lords commissioners on this subject, is, in fact, 
a book originally compiled by Mr. (now Sir Godfrey) Lushington, 
which was published under the authority of the lords commis- 
sioners as stating in a convenient form the general principles by 
which Her Majesty's officers are guided in the exercise of their 
duties; but it has never been asserted and can not be admitted 
to be an exhaustive or authoritative statement of the views of the 
lords commissioners. The preface to the book states that it does 
not treat of questions which will ultimately have to be disposed of 
by the prize court, but which clo not concern the officer's duty of 
the place and hour. The directions in this manual, which for 
practical purposes were sufficient in the case of wars such as have 
been waged by Great Britain in the past, are quite inapplicable 
to the case which has now arisen of war with an inland state, 
whose only communication with the sea is over a few miles of 
railway to a neutral port. In a portion of the introduction the 
author discusses the question of destination of the cargo, as distin- 
guished from destination of the vessel, in a manner by no means 
favourable to the contention advanced in Count Hatzfeldt's note. 
Moreover, Professor Holland, who edited a revised edition of this 



14 CONTINUOUS VOYAGE 

manual in 1888, in a recent letter published in the Times, has 
expressed an opinion altogether inconsistent with the view whicb 
the German Government endeavour to found upon the words of 
the manual. 

In the opinion of Her Majesty's Government, the passage cited 
from the Manual, " that the destination of the vessel is conclu- 
sive as to the destination of the goods on board," has no applica- 
tion to such circumstances as have now arisen. 

It can not apply to contraband of war on board of a neutral 
vessel if such contraband was at the time of seizure consigned or 
intended to be delivered to an agent of the enemy at a neutral 
port, or, in fact, destined for the enemy's country. (Ibid. p. 18.) 

The British Admiralty Manual of Naval Prize Law, 
1888, stated : 

71. The ostensible destination of the vessel is sometimes a 
neutral port, while she is in reality intended, after touching and 
even landing and colorably delivering over her cargo there, to 
proceed with the same cargo to an enemy port. In such a case 
the voyage is held to be " continuous " and the destination is held 
to be hostile throughout. 

Paragraph 73 of this manual provided as to the cargo 
that if the destination of the vessel on board of which 
the cargo was should be neutral, then the " destination of 
the goods should be considered neutral," even if the goods 
have apparently an ulterior hostile destination. 

Report in 1905. — In the Report of the British Royal 
Commission on Supply of Food and Raw Material in the 
Time of War, 1905, the doctrine of continuous voyage is 
stated as follows: 

Goods, moreover, whatever may be their intrinsic character, 
are not contraband unless they have a belligerent destination, but 
there has been during the last half century much discussion as to 
the evidence necessary to establish the fact that goods are intended 
for the enemy's use. If the destination of the ship carrying the 
goods is an enemy's port, this is held to be conclusive evidence as 
against absolutely contraband goods, but to exonerate the goods 
it is not sufficient to show that the ostensible destination of the 
ship is a neutral port. If after touching and even landing and 
colorably delivering her cargo at such a port, she is in reality 
intended to proceed with the same cargo to an enemy's port, the 
voyage is held to be "continuous" and the destination to be 



NAVAL CONFERENCE, 1908-1909 15 



hostile throughout. Moreover, even when the destination of the 
ship is bona fide, a neutral port, it does not follow that she is not 
engaged in the carriage of contraband, should it appear that the 
goods in question have an ulterior destination, to be attained by 
transshipment, over land conveyance or otherwise, for the use of 
the enemy. In case of goods ancipitis usus the requirements as 
to destination are stricter, and to render such articles confiscable 
by a belligerent, it is necessary to show that they are intended to 
reach a port of naval or military equipment belonging to the 
enemy, or occupied by the enemy's naval or military forces, for 
the enemy's fleet at sea, or for the relief of a port besieged by 
such belligerent," (Vol. 1, p. 23, sec. 97.) 

International Naval Conference,* 1908-1909. — In the 
invitation to the international naval conference which 
drew up the Declaration of London in 1908-9, Sir Ed- 
ward Grey suggested as one of the questions for the 
conference " The doctrine of continuous voyage in respect 
both of contraband and of blockade." 

In the letter of Sir Edward Grey, December 1, 1908, 
naming the delegates to the International naval confer- 
ence, he said of continuous voyage : 

25. The principle underlying the doctrine of continuous voyage 
is not of recent origin, and may be regarded as a recognized 
part of the law of nations. Its application to vessels carrying 
contraband has already been incidentally explained in para- 
graph 15 of the present instructions, as justifying the seizure of 
any neutral ship carrying a contraband cargo which is in fact 
destined for enemy territory, whether the cargo was to be carried 
to such territory by the ship herself, or after transshipment, by 
another vessel, or by overland transport from a neutral port. 

26. For the purposes of blockade, on the other hand, the destina- 
tion justifying capture is that of the ship, and not of the cargo; 
and a vessel whose final destination is a neutral port can not, 
unless she endeavours, before reaching that destination, to enter 
a blockaded port, be condemned for breach of blockade, although 
her cargo may be ear-marked to proceed in some other way to 
the blockaded coast. His Majesty's Government believe that all 
the powers will probably be in agreement on this point, unless 
the United States were to maintain that the condemnation pro- 
nounced by their Supreme Court in the well-known case of the 
Springbote extended the application of the doctrine of continuous 
voyage to breaches of blockade, and rendered the vessel carrying 
a cargo destined for a blockaded port liable to seizure, even 



16 CONTINUOUS VOYAGE 

though she herself was not proceeding to such port. It is, how- 
ever, exceedingly doubtful whether the decision of the Supreme 
Court was in reality meant to cover a case of blockade-running 
in which no question of contraband arose. Certainly, if such was 
the intention, the decision would pro tanto be in conflict with 
the practice of the British courts. His Majesty's Government see 
no reason for departing from that practice, and you should en- 
deavour to obtain general recognition of its correctness. (Parlia- 
mentary Papers, Misc. No. 4, 1909, p. 27. ) 

The question of regulation of continuous voyage gave 
rise to divergent views, as is evident in the report of 
the British Delegation to Sir Edward Grey on March 1, 
1909, in which the delegation says of continuous voyage : 

As the powers by whose prize court the doctrine has always 
been upheld and applied were naturally reluctant to renounce a 
right which they claimed to be founded in logic and justice and 
as, on the other hand, its abandonment was made a vital issue 
by those who refused to acknowledge it, there seemed at one 
time to be a danger of the complete breakdown of the conference 
at this point. (International Naval Conference, Misc. No. 4, 
1909, p. 96.) 

Agreement among the 10 leading maritime powers that 
signed the Declaration of London was embodied in article 
30, as follows : 

Absolute contraband is liable to capture if it is shown to be 
destined to the territory belonging to or occupied by the enemy, or 
to the armed forces of the enemy. It is immaterial whether the 
carriage of the goods is direct or entails either transshipment or 
transport over land. 

Of this article the general report of the naval confer- 
ence says: 

The articles included in the list in article 22 are absolute con- 
traband when they are destined for a territory of the enemy or 
for a territory occupied by the enemy, or for his armed military 
or naval forces. These articles are liable to capture as soon as 
a similar final destination can be shown by the captor. It is not, 
therefore, the destination of the vessel which is decisive, it is the 
destination of the goods. It makes no difference if these goods 
are on board a vessel which is to discharge them in a neutral 
port ; as soon as the captor is able to show that the goods are to 
be forwarded from there by land or sea to an enemy country, that 



PAKLIAMENTAKY DISCUSSION 17 

is sufficient to justify the capture and subsequent condemnation 
of the cargo. It is the very principle of continuous voyage, which 
as regards absolute contraband is thus established by article 30. 
(1909 Naval War College, International Law Topics, p. 75.) 

Continuous voyage as related to conditional contra- 
band was provided for in article 35 : 

Conditional contraband is not liable to capture, except when on 
beard a vessel bound for territory belonging to or occupied by the 
enemy, or for the armed forces of the enemy, and when it is not 
to be discharged at an intervening neutral port. 

The ship's papers are conclusive proof of the voyage of the 
vessel as also of the port of discharge of the goods, unless the 
vessel is encountered having manifestly deviated from the route 
which she ought to follow according to the ship's papers and 
being unable to justify by sufficient reason such deviation. (Ibid, 
p. 85.) 

On this the general report says : 

As has been said above, the doctrine of continuous voyage is 
excluded for conditional contraband. This then is liable to cap- 
ture only if it is to be discharged in an enemy port. As soon as 
the goods are documented to be discharged in a neutral port they 
can not be contraband, and there is no examination as to whether 
they are to be forwarded to the enemy by sea or land from that 
neutral port. This is the essential difference from absolute con- 
traband. (Ibid. p. 85.) 

Parliamentary discussion. — Even though the Declara- 
tion of London was not ratified by Parliament, the doc- 
trine of continuous voyage did receive some considera- 
tions, as is seen in the remarks of Mr. McKinnon Wood 
on June 28, 1911 : 

I come now to the doctrine of continuous voyage upon which 
we have been attacked. * * * The result of the agreement is 
very satisfactory. The doctrine is established where it is im- 
portant and given up where it is of no practical value. It is 
agreed in the case of absolute contraband that it is very impor- 
tant to us. * * * It is said that we give an advantage to 
foreign nations who can bring things in by land. Never was 
there a more ridiculous argument. It is an advantage you can 
not deprive them of. ( Hansard, Commons, v. 27, p. 454. ) 

Regulations in 191k. — While the Declaration of London 
had not been ratified in 1914, the rules of this Declaration 



18 CONTINUOUS VOYAGE 

had prior to 1914 been embodied in the regulations of 
many States. Articles 30 and 35, relating to absolute and 
conditional contraband, often appeared without change. 
Article 32 of the French instructions of 1912 was issued 
in conformity with article 30 of the Declaration of 
London. 

" Les articles enumeres ci-dessus sont de contrebande, s'il vous 
apparait qu'ils sont destines au territoire de l'ennemi ou a un 
territoire occupe par lui ou a ses forces armees. Peu importe que 
le navire transporteur soit lui-meme a destination d'un port 
neutre." ( 1925 Naval War College, International Law Documents, 
p. 149.) 

Article 35 of the German ordinance of September 20, 
1909, followed the same principle. 

Articles of conditional contraband are subject to seizure only 
on board a ship which is on the way to the enemy country or a 
place held by the enemy or to the enemy forces, and when these 
articles are not to be discharged in an intermediate neutral port, 
i. e., a port at which the ship must call before reaching any final 
destination. (Ibid. p. 157.) 

No Japanese rules had embodied much of the Declara- 
tion of London. 

After the outbreak of war an effort was for a time 
made to conform to the articles of the Declaration of 
London, but soon changes were introduced in general, re- 
stricting neutral freedom of commerce. 

Declaration of London and World War. — On August 
6, 1914, Mr. Bryan, Secretary of State of the United 
States, sent communications, similar to the following, to 
the embassies at St. Petersburg, Paris, Berlin, and Vi- 
enna, and to the legation at Brussels : 

Department of State, 
Washington, August 6, 1914 — 1 p. m. 
Mr. Bryan instructs Mr. Page to inquire whether the British 
Government is willing to agree that the laws of naval warfare as 
laid down by the Declaration of London of 1909 shall be appli- 
cable to naval warfare during the present conflict in Europe pro- 
vided that the governments with whom Great Britain is or may 
be at war also agree to such application. Mr. Bryan further in- 



DECLARATION OF LONDON 19 

structs Mr. Page to state that the Government of the United States 
believes that an acceptance of these laws by the belligerents would 
prevent grave misunderstandings which may arise as to the rela- 
tions between neutral powers; and the belligerents. Mr. Bryan 
adds that it is earnestly hoped that this inquiry may receive favor- 
able consideration. ( Special Supplement, vol. 9, Amer. Jour. Int. 
Law, p. 1.) 

Austria on August 13 and Germany on August 20 re- 
plied indicating that their Governments were prepared to 
apply the Declaration of London " provided its pro- 
visions are not disregarded by other belligerents." 

Eussia, August 20, answered that its actions would be 
similar to the British. 

On August 22 the British Foreign Office informed the 
American ambassador that the Government — 

have pleasure in stating that they have decided to adopt gen- 
erally the rules of the declaration in question, subject to certain 
modifications and additions which they judge indispensable to the 
efficient conduct of their naval operations. A detailed explana- 
tion of these additions and modifications is contained in the in- 
closed memorandum. 

The necessary steps to carry the above decision into effect have 
now been taken by the issue of an order in council, of which I 
have the honor to inclose copies herein for your excellency's 
information and for transmission to your Government. 

I may add that His Majesty's Government, in deciding to adhere 
to the rules of the Declaration of London, subject only to the 
aforesaid modifications and additions, have not waited to learn 
the intentions of the enemy governments, but have been actuated 
by a desire to terminate at the earliest moment the condition of 
uncertainty which has been prejudicing the interests of neutral 
trade. (Ibid. p. 3.) 

This order in council was as follows : 

Whereas during the present hostilities the naval forces of His 
Majesty will cooperate with the French and Russian naval 
forces ; and 

Whereas, it is desirable that the naval operations of the allied 
forces so far as they affect neutral ships and commerce should 
be conducted on similar principles ; and 

Whereas the Governments of France and Russia have informed 
His Majesty's Government that during the present hostilities it 



20 CONTINUOUS VOYAGE 

is their intention to act in accordance with the provisions of the 
convention known as the Declaration of London, signed on the 
26th day of February, 1909, so far as may be practicable : 

Now, therefore, His Majesty, by and with the advice of his 
privy council, is pleased to order, and it is hereby ordered, that 
during the present hostilities the convention known as the Decla- 
ration of London shall, subject to the following additions and 
modifications, be adopted and put in force by His Majesty's Gov- 
ernment as if the same had been ratified by His Majesty. 

The additions and modifications are as follows : 

(1) The lists of absolute and conditional contraband contained 
in the proclamation dated August 4, 1914, shall be substituted 
for the lists contained in articles 22 and 24 of the said declara- 
tion. 

(2) A neutral vessel which succeeded in carrying contraband 
to the enemy with false papers may be detained for having car- 
ried such contraband if she is encountered before she has com- 
pleted her return voyage. 

(3) The destination referred to in article 33 may be inferred 
from any sufficient evidence, and (in addition to the presumption 
laid down in article 34) shall be presumed to exist if the goods 
are consigned to or for an agent of the enemy state or to or for 
a merchant or other person under the control of the authorities 
of the enemy state. 

(4) The existence of a blockade shall be presumed to be 
known — 

(a) To all ships which sailed from or touched at an enemy 
port a sufficient time after the notification of the blockade to the 
local authorities to have enabled the enemy Government to make 
known the existence of the blockade ; 

(&) To all ships which sailed from or touched at a British or 
allied port after the publication of the blockade. 

(5) Notwithstanding the provisions of article 35 of the said 
declaration, conditional contraband, if shown to have the destina- 
tion referred to in article 32, is liable to capture, to whatever 
port the vessel is bound and at whatever port the cargo is to be 
discharged. 

(6) The general report of the drafting committee on the said 
declaration presented to the naval conference and adopted by the 
conference at the eleventh plenary meeting on February 25, 1909, 
shall be considered by all prize courts as an authoritative state- 
ment of the meaning and intention of the said declaration, and 
such courts shall construe and interpret the provisions of the said 
declaration by the light of the commentary given therein. 



DECLARATION" OF LONDON" 21 

And the lords commissioners of His Majesty's Treasury, the 
tords commissioners of the Admiralty, and each of His Majesty's 
principal secretaries of state, the president of the probate, divorce, 
and admiralty division of the high court of justice, all other judges 
of His Majesty's prize courts, and all governors, officers, and 
authorities whom it may concern are to give the necessary direc- 
tions herein as to them may respectively appertain. 

Almeeic Fitzboy. 

(Ibid. p. 4.) 

The United States replied : 

Department of State, 
Washington, October 22, 1914 — 4 P- w?. 

Your No. 864, October 19, Declaration of London. 

Inasmuch as the British Government consider that the conditions 
of the present European conflict made it impossible for them to ac- 
cept without modification the Declaration of London, you are re- 
quested to inform His Majesty's Government that in the circum- 
stances the Government of the United States feels obliged to 
withdraw its suggestion that the Declaration of London be adopted 
as a temporary code of naval warfare to be observed by belliger- 
ents and neutrals during the present war ; that therefore this 
Government will insist that the rights and duties of the United 
States and its citizens in the present war be defined by the exist- 
ing rules of international law and the treaties of the United 
States, irrespective of the provisions of the Declaration of London ; 
and that this Government reserves to itself the right to enter a 
protest or demand in each case in which those rights and duties 
so defined are violated or their free exercise interfered with by the 
authorities of His Britannic Majesty's Government. 

Lansing. 

(Ibid. p. 7.) 

This reply was in accord with article 65 of the Declara- 
tion of London, which stated — 

The provisions of the present declaration form an indivisible 
whole. 

The general report says : 

This article is of great importance, and is in conformity with 
that which was adopted in the Declaration of Paris. 

The rules contained in the present declaration related to mat- 
ters of great importance and great diversity. They have not all 
been accepted with the same degree of eagerness by all the dele- 
gations ; some concessions have been made on one point in con- 



22 CONTINUOUS VOYAGE 

sideration of concessions obtained on another. The whole, all 
things considered, has been recognized as satisfactory. A legiti- 
mate expectation would be defeated if one power might make 
reservations on a rule to which another power attached particular 
importance. (1909 Naval War College, International Law Topics, 
p. 155.) 

Restraints on commerce. — A British order in council of 
October 29, 1914, introduced still further modifications in 
the provisions of the Declaration of London and other 
modifications followed. 

These and other acts led the Secretary of State of the 
United States in a note of December 26, 1914, to say : 

Department of State, 
Washington, December 26, 1914. 
To Ambassador W. H. Page.' 

The Government of the United States has viewed with grow- 
ing concern the large number of vessels laden with American 
goods destined to neutral ports in Europe, which have been seized 
on the high seas, taken into British ports and detained sometimes 
for weeks by the British authorities. During the early days of 
the war this Government assumed that the policy adopted by the 
British Government was due to the unexpected outbreak of hos- 
tilities and the necessity of immediate action to prevent contra- 
band from reaching the enemy. For this reason it was not dis- 
posed to judge this policy harshly or protest it vigorously, al- 
though it was manifestly very injurious to American trade with 
the neutral countries of Europe. This Government, reying con- 
fidently upon the high regard which Great Britain has so often 
exhibited in the past for the rights of other nations, confidently 
awaited amendment of a course of action which denied to neu- 
tral commerce the freedom to which it was entitled by the law 
of nations. * * * 

Articles listed as absolute contraband, shipped from the United 

States and consigned to neutral countries, have been seized and 

detained on the ground that the countries to which they were 

destined have not prohibited the exportation of such articles. 
* * * 

In the case of conditional contraband the policy of Great 
Britain appears to this Government to be equally unjustified by 
the established rules of international conduct. As evidence of 
this, attention is directed to the fact that a number of the Amer- 
ican cargoes which have been seized consist of foodstuffs and 
other articles of common use in all countries, which are admittedly 



EESTEAINTS ON COMMEKCE 23 

relative contraband. In spite of the presumption of innocent use 
because destined to neutral territory, the British authorities made 
these seizures and detentions without, so far as we are informed, 
being in possession of facts which warranted a reasonable belief 
that the shipments had in reality a belligerent destination, as that 
term is used in international law. Mere suspicion is not evi- 
dence and doubts should be resolved in favor of neutral commerce, 
not against it. The effect upon trade in these articles between 
neutral nations resulting from interrupted voyages and detained 
cargoes is not entirely cured by reimbursement of the owners for 
the damages which they have suffered, after investigation has 
failed to establish an enemy destination. The injury is to Amer- 
ican commerce with neutral countries as a whole through the 
hazard of the enterprise and the repeated diversion of goods from 
established markets. 

It also appears that cargoes of this character have been seized 
by the British authorities because of a belief that, though not 
originally so intended by the shippers, they will ultimately reach 
the territory of the enemies of Great Britain. Yet this belief is 
frequently reduced to a mere fear in view of the embargoes which 
have been decreed by the neutral countries, to which they are 
destined, on the articles composing the cargoes. 

That a consignment "to order" of articles listed as conditional 
contraband and shipped to a neutral port raises a legal presump- 
tion of enemy destination appears to be directly contrary to the 
doctrines previously held by Great Britain and thus stated by 
Lord Salisbury during the South African War : 

" Foodstuffs, though having a hostile destination, can be con- 
sidered as contraband of war only if they are for the enemy's 
forces ; it is not sufficient that they are capable of being so used, 
it must be shown that this was in fact their destination at the time 
ot their seizure." 

With this statement as to conditional contraband the views of 
this Government are in entire accord, and upon this historic doc- 
trine, consistently maintained by Great Britain when a belliger- 
ent as well as a neutral, American shippers were entitled to 
rely. * * * 

(Special Supplement, vol. 9, Amer. Jour. Int. Law, pp. 55-8.) 

A preliminary reply to this note was made by the 
British Foreign Office, January 7, 1915. Only brief ex- 
tracts will be made from these notes, in their relation to 
continuous voyage. In its reply the Foreign Office said : 

We are confronted with the growing danger that neutral coun- 
tries contiguous to the enemy will become on a scale hitherto un- 



24 CONTINUOUS VOYAGE 

precedented a base of supplies for the armed forces of our ene- 
mies and for materials for manufacturing armament. The trade 
figures of imports show how strong this tendency is, but we have 
no complaint to make of the attitude of the governments of those 
countries, which so far as we are aware have not departed from 
proper rules of neutrality. We endeavor in the interest of our 
own national safety to prevent this danger by intercepting goods 
really destined for the enemy without interfering with those which 
are "bona fide" neutral. (Ibid. p. 64.) 

The British note of February 10, 1915, was a fuller 
attempt to meet the American objections to British prac- 
tices. In this note it was said, among other things : 

No country has maintained more stoutly than Great Britain in 
modern times the principle that a be.ligerent should abstain from 
interference with the foodstuffs intended for the civil population. 
The circumstances of the present struggle are causing His Majes- 
ty's Government some anxiety as to whether the existing rules 
with regard to conditional contraband, framed as they were with 
the object of protecting so far as possible the supplies which were 
intended for the civil population, are effective for the purpose, 
or suitable to the conditions present. (Ibid. p. 79.) 

Official consignees. — On February 20, 1915, the United 
States proposed as a modus vivendi to the belligerent gov- 
ernments that the United States should designate agencies 
which would be consignees of foodstuffs in Germany and 
that these agencies should distribute to noncombatants 
only and that under these conditions Great Britain would 
not place foodstuffs on the absolute contraband list. Ger- 
many indicated its readiness to accede to this proposition 
on March 1, 1915, saying "Such regulation would, of 
course, be confined to importations by sea, but that would, 
on the other hand, include indirect importations by way 
of neutral ports." Great Britain maintained that it could 
not accept these propositions, March 15, 1915. 

Retaliatory ■measures. — Retaliatory measures began to 
be aimed not merely at belligerents but at neutrals in 
order to weaken belligerents, and neutral rights, for 
which there had been many years of struggle, were, from 
the American viewpoint, disregarded. 



BRITISH BLOCKADE, 1917 25 

In the note of March 30, 1915, the American Secretary 
of State said : 

It is confidently assumed that His Majesty's Government will 
not deny that it is a rule sanctioned by general practice that, even 
though a blockade should exist and the doctrine of contraband 
as to unbloekaded territory be rigidly enforced, innocent ship- 
ments may be freely transported to and from the United States 
through neutral countries to belligerent territory without being 
subject to the penalties of contraband traffic or breach of blockade, 
much less to detention, requisition, or confiscation." * * * 

The note of His Majesty's principal Secretary of State for 
Foreign Affairs, which accompanies the order in council and 
which bears the same date, notifies the Government of the United 
States of the establishment of a blockade which is, if defined by 
the terms of the order in council, to include all the coasts and 
ports of Germany and every port of possible access to enemy ter- 
ritory. But the novel and quite unprecedented feature of that 
blockade, if we are to assume it to be properly so defined, is that 
it embraces many neutral ports and coasts, bars access to them, 
and subjects all neutral ships seeking to approach them to the 
same suspicion that would attach to them were they bound for 
the ports of the enemies of Great Britain, and to unusual risks 
and penalties. (Ibid. p. 117.) 

British blockade in World War. — The report of the 
British war cabinet for the year 1917 speaking of inter- 
ference with neutral trade by what was called blockade 
said : 

Turning to blockade, by the end of 1916 the system of the block- 
ade had reached a high point of elaboration. It was based upon — ■ 

(a) Vigilant scrutiny of the transactions of all suspect neutral 
traders and the listing of all who habitually assisted enemy trade. 

(6) Rationing schedules showing the normal requirements of 
all the European neutrals in respect of all the more important 
commodities! which they obtain from overseas. 

(c) Agreements with neutral shipowners, traders and associa- 
tions of traders under which the contracting neutrals gave cer- 
tain undertakings in consideration for special facilities for their 
shipments. Many of these agreements contain rationing clauses 
which make it possible for His Majesty's Governments to detain 
automatically any excessive shipments of the articles in question. 

Broadly speaking, it may be said that by December, 1916, all, 
or almost all, the oversea trade of Germany had been stopped. 

88941—28 3 



26 CONTINUOUS VOYAGE 

There was still a little leakage in respect of the trade from the 
Dutch colonies, which, when we were not in so strong a belligerent 
position, we had to deal with specially, but it only affected a few 
articles like tobacco, cinchona, and, even so, the amounts were 
relatively small. We could, in fact, claim that the German at- 
tempt to interpose the border countries for the purpose of pursu- 
ing the great overseas trade which they had previously carried on 
from German ports was definitely defeated. 

Beyond this the main preoccupation of the Ministry of Blockade 
has been directed to diminishing the trade between the border 
neutrals and Germany. It was impossible to get at this trade 
directly, for obvious reasons, nor had we any belligerent right 
which we could enforce in the prize court to stop the import into 
a neutral country of goods which might be used to produce other 
goods which were to be sent into Germany. All we could do was, 
firstly, to use such means of economic pressure as we had to 
induce the neutrals to forego their German trade, and, secondly, 
to buy, as far as; we could, surplus products which otherwise 
would have gone to Germany. (The War Cabinet, Report for 
the Year 1917, p. 22.) 

Discussion in British House of Commons. — In the 
British House of Commons in January, 1916, the matter 
of further interference with commerce was discussed. 
On January 26, 1916, the following were among the state- 
ments made : 

Mr. Shirley Benn. I beg to move — 

" That this House, having noted the volume of the imports into 
neutral countries bordering on enemy territory of goods essential 
to the enemy for the prosecution of the war, urges the Government 
to enforce as effective a blockade as possible, without interfering 
with the normal requirements of those neutral countries for 
internal consumption." (Parliamentary Debates, Commons, 1916, 
5th series, LXXVIII, 1279.) 

In proposing this motion Mr. Benn stated he did not 
wish to embarrass the Government, but called attention 
to the increase of imports to neutral countries near 
Germany with the implication that an "emphatic en- 
forcement of the law of continuous voyage and the doc- 
trine of ultimate destination " would have cut off many of 
these imports. He suggested a blockade from the Nor- 
wegian shore across the Straits of Gibraltar and that 



DISCUSSION, HOUSE OF COMMONS 27 

everything going into or coming out of Germany be 
declared contraband. He admits that neutral countries 
" would very probably object," but maintains that Amer- 
ica in the Civil War and in the Spanish-American War 
had made extreme claims. 

Mr. Leslie Scott, continuing the debate, said : 

We have heard a good deal of talk, conveyed to us from the 
press in other countries, of the rights of neutrals. I think the 
rights of belligerents are a little lost sight of by neutrals. The 
business of His Majesty's Government is to consider rather the 
rights of belligerents than the rights of neutrals. We have to 
take risks, but in measuring the risks it is worth while remem- 
bering what the true character of the risks are that we are 
running in relation to neutrals. I am satisfied that the Govern- 
ment are satisfied that there is no risk of any one of those neu- 
tral powers which are concerned going to war with us. Upon 
that basis, which I assume, and I believe everyone in this House 
believes to be the right basis — upon that footing the only risks we 
run in regard to neutrals are the risks of causing pecuniary 
damage to their commercial interests. I never knew a commercial 
grievance which was rot adequately compensated by a money 
payment. (Ibid. p. 1286.) 

After further discussion he says : 

Fourthly, and this is the crux of the situation, goods in excess 
of neutral requirements should be presumed to be intended for 
the enemy. (Ibid. p. 1293.) 

Mr. Scott advocated a comprehensive blockade. 

Our command of the sea is absolute. It is in the power of the 
Allies to stop every ship carrying goods, directly or indirectly, 
coming from or destined to an enemy country. We can stop them 
in the Atlantic, we can stop them in the North Sea, we can stop 
them in the Mediterranean, and we can stop them in the Indian 
Ocean, the Black Sea, and the Persian Gulf. We can stop them 
all round the enemy powers, and we ought to do it. Under exist- 
ing conditions no neutral can dispute our ability in fact to prevent 
the ingress and egress of German trade. That cardinal necessity 
of the validity of blockade can not be disputed. We are in a 
position to do it. The effective force is there. We can apply it 
this minute without fear of effective resistance and with a cer- 
tainty of danger attaching to every ship that tries to break our 
blockade. Under these circumstances the major premise is estab- 



28 COXTIXUOUS VOYAGE 

lished for the suggestions that I make. I conceive that the 
object of this motion is that this House should tell the Govern- 
ment and the world in no uncertain terms that we mean the com- 
mand of the sea to be utilised to the full ; that no more exceptions 
shall be made in individual cases ; and that the blockade shall be 
applied rigorously to-day and in future, continuously and without 
intermission, until Germany admits defeat. (Ibid. p. 1294.) 

Other members took views at variance with these ex- 
pressed, but there was general agreement that some of 
the orders in council aimed to check trade with the Cen- 
tral Powers had failed. 

Mr. Leverton Harris, who had been associated with the 
enforcement of so-called blockade, speaking of exports 
from neutrals to belligerents in the earlv clavs of the 
World War, said : 

Those neutrals, having got rid of their own commodities, at 
once find a difficulty in providing for their own population, and 
consequently you find a very large increase of the imports intu 
those neutral countries, which increase appears in the figures. 
That is one of the most difficult questions with which the Govern- 
ment have to deal. Here is a perfectly legitimate trade. Nobody 
can say to a neutral country, " You are not to sell your butter to 
Germany." We can not say to Denmark, " You are not to sell your 
butter to Germany." We buy butter ourselves very largely from 
Denmark, and Denmark is perfectly entitled to sell her butter. 
I do not know upon what principle of international law you can 
say to Denmark that she is not to buy nuts or other articles from 
foreign countries to produce margarine unless it was for con- 
sumption by her own people. That is the greatest difficulty which 
I think the problem presents at the present moment. (Ibid, 
p. 1305.) 

Speaking in reply to various questions, the British 
Undersecretary of State for Foreign Affairs, Lord Kob- 
ert Cecil, on March 9, 1916, said : 

Why not apply the doctrine of continuous voyage? We have 
applied it and worked it, and it is the very foundation of the 
whole of the action which we have taken. You can not blockade 
an enemy through a neutral country except by the operation of 
that doctrine. Our plan is to arrest all commerce of Germany, 
whether going in or coming out, whether it comes through a 



RATIONING SYSTEM 29 

neutral port or a German port; that is the whole object and the 
whole difficulty of our position. We have to discover for certain 
what is German and what is neutral commerce. I can not under- 
stand what more you can do by blockade. (Ibid. LXXX, 1815.) 

The rationing system. — Mr. J. A. Salter, who had been 
closely related to the administration of the British and 
allied measures to control movements of vessels and goods 
toward the Central Powers in the World War, writing 
in 1920 said : 

Germany's declaration, however, that after February, 1915, 
she would instruct her submarines to attack all merchant vessels 
in British waters, created an outburst of indignation in neutral 
countries, which Great Britain at once used to make the blockade 
comprehensive. In the reprisals order of March 11, 1915, she 
announced her intention to stop all goods of enemy origin or 
destination, and proceeded henceforth to stop supplies intended 
for Germany, without regard to the distinction of the earlier 
contraband rules or to the fact that the supplies might be con- 
signed through a neutral port. Even this, however, was not 
enough. It was useless to prohibit every cargo of food destined 
for Germany, whether sent through contiguous neutral countries 
or not, if these neutral countries could themselves import freely 
for their own uses, and with the sufficiency so obtained, export 
their own produce to Germany by routes which the Allies could 
not control. This was the reason for the " rationing " policy, 
which was begun in 1915, and subsequently became the central 
feature in the whole blockade system. Detailed statistics were 
compiled as to the pre-war imports and consumption of all the 
neutral countries which had uncontrolled access to Germany; 
and only enough war imports were allowed to give a bare suffi- 
ciency for internal consumption. The neutral countries were 
therefore compelled to adopt internal rationing measures, so that 
the system of official control extended over almost the whole 
world — neutral and belligerent alike. The actual privations of 
some of the neutrals were indeed much more serious than those 
in allied countries, no doubt partly because their export prohibi- 
tions were not sufficient to prevent supplies slipping across the 
border under the attraction of very high profits. (Allied Ship- 
ping Control, J. H. Salter, p. 100.) 

Extension of doctrine, 1911^-1918. — In the case of the 
Kim, the British prize court in 1915, relying upon early 



30 CONTINUOUS VOYAGE 

cases, referred to the case of the Bermuda in which Chief 
Justice Chase said : 

Neutrals may convey in neutral ships, from one neutral port 
to another, any goods, whether contraband of war or not, if in- 
tended for actual delivery at the port of destination, and to 
become part of the common stock of the country or of the port. 
(3 Wall. [1865], 514.) 

In the decision in the case of the &, Sir Samuel 
Evans said : 

As to the real destination of a cargo, one of the chief tests is 
whether it was consigned to the neutral port to be there delivered 
for the purpose of being imported into the common stock of the 
country. (The Kim L. R. [1915], p. 215.) 

He also said : 

It is essential to appreciate that the foundation of the law of 
contraband, and the reason for the doctrine of continuous voyage 
which has been grafted into it, is the right of a belligerent to 
prevent certain goods from reaching the country of the enemy 
for his military use. * * * 

And with the facilities of transportation by sea and by land 
which now exist, the right of a belligerent to capture conditional 
contraband would be of a very shadowy value if a mere consign- 
ment to a neutral port were sufficient to protect the goods. It 
appears also to be obvious that in these clays of easy transit, if the 
doctrine of continuous voyage or continuous transportation is to 
hold at all, it must cover not only voyages from port to port, at 
sea, but also transport by land until the real, as distinguished 
from the merely ostensible, destination of the goods is reached. 
(Ibid.) 

In this case the decision was upon the goods them- 
selves, and states: 

For the many reasons which I have given in the course of this 
judgment and which do not require recapitulation or even sum- 
mary, I have come to the clear conclusion from the facts proved 
and the reasonable and, indeed, irresistible inferences from them, 
that the cargoes claimed by the shippers as belonging to them at 
the time of seizure were not on their way to Denmark to be 
incorporated into the common stock of that country by consump- 
tion or bona fide sale or otherwise ; but, on the contrary, that 
they were on their way not only to German territory but also to 



KIEKWALL PRACTICE 31 

the German Government and their forces for naval and military 
use as their real ultimate destination. 

To hold the contrary would be to allow one's eyes to be filled 
by the dust of theories and technicalities and to be blinded to the 
realities of the case. (Ibid.) 

The Balto had in its cargo when on a voyage from 
American to Swedish ports in 1915 leather. The ship 
was " diverted to Kirkwall for examination." The 
British Government contended — 

that leather on its way to a neutral country, there to be made 
into boots and then to be taken to an enemy country, is liable to 
condemnation as contraband ; 

while for the owners it was maintained that — 

The doctrine of continuous voyage applies only to goods which in 
their actual state at the time of capture are on the way to the 
enemy. Where the destination is a neutral port; the subsequent 
transportation after manufacture is permitted. There must be a 
preconceived plan or scheme to send the goods to a hostile desti- 
nation, and that plan must be in operation when the goods are 
siezed. There is absolutely no proof of any such intention in this 
case. Even if there was such an intention, the right of the bel- 
ligerent is not to seize the leather on its way to the factory, but 
to stop the boots on the way from Sweden to Germany. (L. R. 
[1917], p. 79.) 

The president of the prize court said : 

One of the tests applied was whether the goods imported were 
intended to become part of the common stock of the neutral coun- 
try into which they were first brought. In my view the notion 
that leather, imported into a neutral country for the express pur- 
pose of being at once turned into boots for the enemy forces, be- 
comes incorporated in the common stock of the neutral country is 
illusory. Instances can be given and multiplied which appear to 
reduce to an absurdity the argument that if work is done in the 
neutral country upon goods which are intended ultimately for the 
enemy, that circumstance of necessity puts an end to their con- 
traband character, and prevents their being confiscable according 
to the doctrine of continuous voyage. 

It may be well to give a few instances, by way of illustration, 
relating both to conditional and absolute contraband. 

Suppose coffee beans and cocoa beans were imported into a 
neutral country with the object of their being converted into 



32 CONTINUOUS VOYAGE 

coffee or cocoa to be sent on to the enemy, would the fact that 
the coffee beans were ground into coffee, or the cocoa beans were 
ground and mixed with sugar to make cocoa in the neutral 
country, be enough to render those goods immune from capture 
if they would be capturable as coffee or cocoa foodstuffs when 
afloat? Again, assume that cloth of an inappropriate hue, but 
intended for the enemy forces, was imported into a neutral 
country, and there dyed into the desired colour for the enemy 
forces ; or that steel helmets were so imported, and there painted 
with the Germany colour, or fitted with the regulation German 
army or regimental marks, would a belligerent lose the right to 
seize them at sea when and because they were not so dyed, 
painted, or fitted? To take a couple more instances. It is quite 
possible that the metal parts of rifles for the enemy army might 
be imported into a Scandinavian country in a complete state ; and 
that the butt ends or timber parts were intended to be affixed in 
such country because timber was plentiful there, or for some other 
reason good or ostensible. Would the metal rifles be free from 
capture by a belligerent because they were to be so completed in 
the neutral country before being sent on to the enemy? If a 
field gun was imported, would it be protected from seizure because 
it would, in fact, be mounted upon its appropriate carriage before 
being exported from a neutral country to the enemy's front? 

The court could not give affirmative answers to such questions 
as these unless it cut itself adrift from the safe anchor of common 
sense. (Ibid.) 

The decision in the case of the Bonna in 1918 governed 
a number of other cases. The Bonna y a neutral vessel, 
was seized on its way from the Dutch East Indies to 
Scandinavian ports and had on board coconut oil which 
was used in Sweden in the manufacture of margarine. 
The case was presented as follows : 

Mr. Leslie Scott, K. C, M. P., for the claimants: Apart from 
the contention based on the export of butter, there is no case to 
answer. There is no authority that supports this contention. The 
case nearest in point is the Balto, in which it was held that 
leather destined to be made into boots for the Germay Army 
could be stopped on its way to a Swedish boot factory. That is 
a very different case. There is no support in international law 
for the proposition that materials used in manufacture are con- 
fiscable when the products of the manufacture are to be con- 
sumed in the country into which they are imported, because their 
consumption will enable other people to export a totally different 



THEORY OF SUBSTITUTION 33 

product to the enemy country. The proposition is a totally unjus- 
tifiable extension of the doctrine of continuous voyage. 

Mr. J. G. Pease, replying for the Crown : The butter is released 
when the materials for making margarine are brought into Sweden 
and the margarine is manufactured. That is enough to make the 
goods conditional contraband. The principle established by the 
cases is that if goods of the same kind are going to the enemy 
country it is not necessary to identify the particular goods. If 
the goods are of the same species and can be used for the same 
purpose, the doctrine of continuous voyage should apply. The 
articles are practically the same. Instead of being classified as 
" margarine " and " butter " they can all be classed as goods of 
the same kind, viz, " edible fats." This may be carrying the 
principle of conditional contraband further than hitherto, but in 
view of the ramifications of modern commerce it is not going too 
far. (7 Lloyds Prize Cases, 367; L. R. [1918], p. 123.) 

In the judgment on this ease the president of the prize 
court, Sir Samuel Evans, said: 

I do not consider that it would be in accordance with inter- 
national law to hold that raw materials on their way to citizens 
of a neutral country, to be converted into a manufactured article 
for consumption in that country, were subject to condemnation on 
the ground that the consequence might, or even would necessarily, 
be that another article of a like kind and adapted for a like 
use would be exported by other citizens of the neutral country to 
the enemy. (Ibid.) 

In the case of the Bonna the doctrine of continuous 
voyage by substitution was not supported. No authori- 
ties sustain such a position. The debates in the House of 
Commons, even when the strain of war was extreme, 
show little approval of such a doctrine. The practical 
application of such a policy would put an end to ordi- 
nary neutral trade and would tend to make war general. 

Liability on account of substitution. — There were many 
propositions for restricting the exports from neutral to 
belligerent States during the World War. The theory of 
restricting or prohibiting trade with neutrals in articles 
which themselves might not go to a belligerent but which 
might release others which might go to a belligerent was 
advanced and received some approval. That a belliger- 



34 CONTINUOUS VOYAGE 

ent might decline to export certain goods to a neutral 
unless the neutral agreed not to export certain goods to 
the other belligerent was regarded as a lawful restraint. 
The Minister of Blockade said on March 27, 1917, of the 
British relations to Norway: 

The position is this. Norway wants a great deal of copper of 
a particular refined kind for her electric works which she is es- 
tablishing in all parts of the country. She has got copper in her 
own country, but it is in the form of pyrites, and contains a small 
quantity of copper in a large amount of sulphur ore. We have 
made an arrangement by which, in return for our providing elec- 
trolytic copper — refined copper — Norway will restrict her trade 
to Germany, and indeed to us, within certain limits. That is the 
nature of the bargain we made. It has been of great use to us, 
and I believe it has been of great use to Norway. That is the 
kind of negotiation which, as it seems to me, is the only way in 
which you can deal with the situation. (Parliamentary Debates, 
Commons, 92 H. C. Deb. 5 s, 260.) 

Such a negotiation as mentioned, above was unlike in 
principle to the theory of substitution though discussed 
in the same speech, where it was said : 

I come to agricultural produce. Simple agricultural produce is 
different. My honorable friend (Mr. Peto) stated that in a very 
plausible way. He said, after all, you let maize come in. It goes 
to feed the pig, and the pig goes on to Germany. I have heard 
people put it in a popular way that the pig is merely maize on four 
legs. After all, when you arrest a cargo of maize you have to 
show to your prize court that it has an ultimate destination — 
Germany. What you can show is that it is going to feed pigs, 
part of which will be eaten in Holland or wherever it may be, 
part of which will be reexported to this country, and part of 
which will go, it may be, to Germany. It is very difficult indeed 
to say that any particular part of that cargo of maize has the 
ultimate destination of Germany, even if you disregard the fact 
that it is intermediately being changed into pig. I can only go on 
what I am advised I can do. That is one difficulty. * * * 

The question is whether we are entitled and how far we are 
able to stop maize or oil cake which is coming from a neutral 
country — the United States — and going to a neutral country and 
passing through our patrols upon the doctrine which I have tried 
to describe to the House. In the present condition of affairs 
I do not want to prejudge anything, but I rather doubt whether 



THEORY OF SUBSTITUTION 35 

we could succeed in a prize court if we put forward such a 
doctrine as that. My honorable and gallant friend (Commander 
Bellairs) recognises the difficulty we are in, but says the time 
has come to put aside the prize court altogether. We are to 
proceed upon what he regards as a new European law. He told 
as in his notice that we are not to allow any supplies to neutral 
European countries unless there is an entire cessation of their 
trade with Germany. That would mean, I suppose, that we are 
to arrest all the cargoes of feeding stuffs, and fertilisers unless 
neutral countries will undertake that they will not export any 
agricultural produce to Germany at all — of course, from a neutral 
country. I have some doubt whether that could be easily de- 
fended. I snould have some little hesitation in repeating the 
perorations in w T hich we have indulged about the defence of the 
rights of small countries. * * * 

We have to consider— and I speak in very general terms here — 
the geographical and military position in these countries. Any 
honorable member can, if he cnooses, by consulting an ordinary 
textbook, see what was the military power of Denmark, both on 
sea and land, before the war. I do not know what she may have 
done to improve that position since then. If he will try to con- 
sider what his position would be as a Danish statesman, faced 
with a demand of the British Government that Denmark should 
wholly cut off trade with Germany, I think he would begin to 
count up rather anxiously the number of soldiers and ships at 
his command. He would have to consider also the relation be- 
tween Denmark and the other Scandinavian countries. He would 
have to consider the general effect of any action against her 
on other neutral nations. He would have to consider the effect 
of any such policy as that which my honorable and gallant friend 
recommends on the general war aims with which this country 
entered the war. We have above all to remember this, that we 
can not lay down this principle — and to do my honorable and 
gallant friend justice he does not lay it down — as applied to 
Denmark only. You have to consider what would be the effect 
of attempting to apply such a rule as that to all neutrals alike. 
(Ibid. 260-263.) 

Later in the same debate, Sir Edward Carson, first 
lord of the Admiralty, said : 

The policy of the country, whatever it may be, must, be the 
policy not merely of the Foreign Office or of the Navy, but it must 
be the policy of the cabinet, and the cabinet having laid down 
the policy, the Foreign Office by negotiation, and the Navy by 
action, have tried to see that policy carried out. Somebody comes 



36 CONTINUOUS VOYAGE 

and says, " Leave it to the Navy. The blockade will be all right, 
and nothing will go into Germany." Those who think that do> 
not really see what that means. What they really mean by that is 
that the Navy will go just as they please, seize every ship of 
every neutral, bring it into port, and take the goods out of it that 
were, intended for neutral countries, and all will be well. That 
is really what they imagine. They never imagine for a moment 
that we are dealing not with one neutral, but with two neutrals — 
the neutral who is exporting and the neutral who is importing. I 
would like to know where we ,would be if this kind of duty had 
been put upon the Admiralty, that we were simply to get an 
instruction that nothing was to go to G-ermany through a neutral 
country that was imported from another neutral country. The 
truth of the matter is that those who put forth that absurd doc- 
trine mean that we should go to war with everybody. That is 
what it really comes to. * * * 

Will any honorable member get up here, for instance, to say 
in this House " You ought to prevent anything going to Norway 
which, by any possibility, can go to Germany under any circum- 
stances"? Will anybody get up and say that? What would be 
the result? Norway would say, ''Very well, you shall no longer 
get from us what is essential for your munitions and other mat- 
ters of this kind." Will anybody say that this is a course we 
ought to pursue ? No ; what the system of blockade that is car- 
ried out by my right honorable friend means is this — and we 
profess nothing more — not that we are able to prevent food and 
imports entirely from getting into Germany through neutral 
countries, but that this is the best system for minimizing imports 
from getting into Germany. My honorable friend who spoke last 
about the food cry took as an illustration feeding stuffs that go 
to the fattening of cattle in neutral countries, and suggested that 
we ought to do something to prevent the produce of those feed- 
ing stuffs from ever going into Germany. I do not know where 
our rights come in to 1 do that. Will he tell me that we have a 
right to say to America that she is to have no trade with neutral 
countries? Does he say that? Of course he can not. The only 
way, leaving international law and international rights out of 
account, of doing this is by saying that what is really going into 
Denmark, or Holland, or wherever it may be, is really intended 
to go into Germany. That is what is called the doctrine of con- 
tinuous voyage. Was there ever a more absurd theory put forward 
than that the doctrine of continuous voyage was to be treated in 
this way? You sent foodstuff into Denmark or Holland; it does 
not to go into Germany, but is used to feed pigs, and eventually the 
pigs when fattened may go into Germany, or may be eaten in 



CONCLUSION 37 

Denmark or Holland, and you are to go into court and say that 
by the doctrine of continuous voyage that food ought not to be 
allowed to go into the neutral countries, because it is food which 
is used to feed the pigs which may or may not go to Germany. 
On the face of that you might starve the Danes, or the Dutch, 
or other neutrals. How do you know when bread goes into Nor- 
way that the Norwegian who feeds upon it may not join the Ger- 
man Army ? There is continuous voyage for you ! ( Ibid. 271- 
274.) 

CONCLUSION 

While the early decisions upon continuous voyage re- 
lated to vessels engaging in time of war in trade which 
was not open to them in time of peace, later decisions 
greatly extended this doctrine. The destination of vessel 
or the destination of the cargo might make it liable to 
condemnation. The cargo might go forward by another 
vessel or by overland transport. In case of the cargo it 
was maintained that it made no difference as to how 
many intermediate means of transport or national 
boundaries might interpose, it was the ultimate destina- 
tion that determined liability, and the doctrine of ulti- 
mate destination came to be accepted. The ultimate 
destination was viewed as an objective fact, regardless 
of the intent of the parties concerned. In the case of the 
Kim in 1915 Sir Samuel Evans, president of the British 
prize court, said: 

I have no hesitation in pronouncing that, in my view, the doc- 
trine of continuous voyage or transportation, both in relation to 
carriage by sea and to carriage overland, had become part of the 
law of nations at the commencement of the present war, in ac^ 
cordance with the principles of recognized legal decisions and with 
the view of the great body of modern jurists and also with the 
practice of nations in recent maritime warfare. 

The result is that the court is not restricted in its vision to 
the primary consignments of the goods in these cases to the neu- 
tral port of Copenhagen ; but is entitled, and bound, to take a more 
extended outlook in order to ascertain whether this neutral desti- 
nation was merely ostensible and, if so, what the real ultimate 
destination was. 

As to the real destination of a cargo, one of the chief tests is 
whether it was consigned to the neutral port to be there delivered 



38 CONTINUOUS VOYAGE 

for the purpose of being imported into the common stock of the 
country. This test was applied over a century ago by Sir Wil- 
liam Grant in the Court of Appeals in prize cases in the case of 
the William. It was adopted by the United States Supreme Court 
in their unanimous judgment in the Bermuda, where Chase, C. J., 
in delivering the judgment, said : " Neutrals may convey in neutral 
ships, from one neutral port to another, any goods, whether con- 
traband of war or not, if intended for actual delivery at the port 
of destination, and to become part of the common stock of the 
country or of the port." (L. R. [1915], p. 215.) 

The cargo on board a vessel at the time of seizure was 
the proper subject for the proceedings of the prize court, 
but not the goods for which this cargo might be substi- 
tuted in the neutral country to which the cargo itself 
was really destined. 

SOLUTION 

The capture should not be sustained under the doctrine 
of continuous voyage. 



Situation II 

SUBMARINES 

Assuming that the treaty of the Conference on Limi- 
tation of Armament, 1921-22, relating to the use of sub- 
marines and noxious gases in warfare should not be rati- 
fied, what are the privileges of a belligerent submarine? 

CONCLUSION 

A belligerent submarine lawfully commissioned as a 
vessel of war may exercise the rights of a vessel of war, 
but its nature gives it no special rights or privileges. 

NOTES 

Treaty in relation to the use of submarines and noxious 
gases in wurfare. 2 — It is assumed in this situation that the 
treaty in relation to the use of submarines and noxious 
gases of the Washington Conference on the Limitation of 
Armament has hot been ratified. 

By Article II of the above treaty " all other civilized 
powers " are invited " to express their assent " to Article I, 
which is declared to be " among the rules adopted by 
civilized nations." This reaffirmation is apparently to 
make clearer to "the public opinion of the world the 
established law." The law as stated in Article I would 
presumably be binding, even without a treaty, because it 
is declared to be " an established part of international 
law." 

2 A Treaty Proposed at Washington, 1922, in Relation to the Use op 
Submarines and Noxious Gases in Warfare 

The United States of America, the British Empire, France, Italy and 
Japan, hereinafter referred to as the Signatory Powers, desiring to make 
more effective the rules adopted by civilized nations for the protection of 
the lives of neutrals and noncombatants at sea in time of war, and to pre- 

39 



40 SUBMARINES 

Queries as to articles. — Many queries have arisen as to 
the exact meaning of words and clauses in Article I of 
the treaty. These questions vary in significance, but de- 
serve attention because any new statement, even of law 
already " adopted," should be clear to those who may be 
bound to act in accordance with its provisions. It has 
been asked whether the use of the word " adopted " in 
the preamble and in Article I had the same meaning, and 

vent the use in war of noxious gases and chemicals, have determined to 
conclude a Treaty to this effect, and have appointed as their Plenipoten- 
tiaries : 

[Names of plenipotentiaries.] 

j 

ARTICLE I 

The Signatory Powers declare that among the rules adopted by civilized 
nations for the protection of the lives of neutrals and noncombatants at 
sea in time of war, the following are to be deemed an established part of 
international law ; 

(1) A merchant vessel must be ordered to submit to visit and search to 
determine its character before it can be seized. 

A merchant vessel must not be attacked unless it refuse to submit 
to visit and search after warning, or to proceed as directed after seizure. 

A merchant vessel must not be destroyed unless the crew and passengers 
have been first placed in safety. 

(2) Belligerent submarines are not under any circumstances exempt 
from the universal rules above stated ; and if a submarine can not capture 
a merchant vessel in conformity with these rules the existing law of 
nations requires it to desist from attack and from seizure and to permit 
the merchant vessel to proceed unmolested. 

ARTICLE II 

The Signatory Powers invite all other civilized Powers to express their 
assent to the foregoing statement of established law so that there may be 
a clear public understanding throughout the world of the standards of con- 
duct by which the public opinion of the world is to pass judgment upon 
future belligerents. 

ARTICLE III 

The Signatory Powers, desiring to insure the enforcement of the humane 
rules of existing law declared by them with respect to attacks upon and the 
seizure and destruction of merchant ships, further declare that any person 
in the service of any Power who shall violate any of those rules, whether 
or not such person is under orders of a governmental superior, sha,ll be 
deemed to have violated the laws of war and shall be liable to trial and 
punishment as if for an act of piracy and may be brought to trial before 
the civil or military authorities of any Power within the jurisdiction of 
which he may be found. 

ARTICLE IV 

The Signatory Powers recognize the practical impossibility of using sub- 
marines as commerce destroyers without violating, as they were violated 



WASHINGTON CONFERENCE 41 

it was presumed that the word referred to an act com- 
pleted, or, as stated, rules " deemed an established part 
of international law." 

The first paragraph speaks of the rules enumerated 
thereunder as " adopted by civilized nations for the pro- 
tection of the lives of neutrals and noncombatants at sea 
in time of war." The history of the law of visit and 
search shows that it was primarily concerned with mat- 
in the recent war of 1914-1918, the requirements universally accepted by 
civilized nations for the protection of the lives of neutrals and noncom- 
batants, and to the end that the prohibition of the use of submarines as 
commerce destroyers shall be universally accepted as a part of the law of 
nations they now accept that prohibition as henceforth binding as between 
themselves and they invite all other nations to adhere thereto. 

article v 

The use in war of asphyxiating, poisonous or other gases, and all analo- 
gous liquids, materials or devices, having been justly condemned by the 
general opinion of the civilized world and a prohibition of such use having 
been declared in treaties to which a majority of the civilized Powers are 
parties, 

The Signatory Powers, to the end that this prohibition shall be univer- 
sally accepted as a part of international law binding alike the conscience 
and practice of nations, declare their assent to such prohibition, agree to 
be bound thereby as between themselves and invite all other civilized 
nations to adhere thereto. 

ARTICLE VI 

The present Treaty shall be ratified as soon as possible in accordance 
with the constitutional methods of the Signatory Powers and shall take 
effect on the deposit of all the ratifications, which shall take place at 
Washington. 

The Government of the United States will transmit to all the Signatory 
Powers a certified copy of the proces-verbal of the deposit of ratifications. 

The present Treaty, of which the French and English texts are both 
authentic, shall remain deposited in the Archives of the Government of the 
United States, and duly certified copies thereof will be transmitted by that 
Government to each of the Signatory Powers. 

ARTICLE VII 

The Government of the United States will further transmit to each of 
the Non-Signatory Powers a duly certified copy of the present Treaty and 
invite its adherence thereto. 

Any Non-Signatory Power may adhere to the present Treaty by com- 
municating an Instrument of Adherence to the Government of the United 
States, which will thereupon transmit to each of the Signatory and Adher- 
ing Powers a certified copy of each Instrument of Adherence. 

In faith whereof, the above named Plenipotentiaries have signed the 
present Treaty. 

Done at the City of "Washington, the sixth day of February, one thou- 
sand nine hundred and twenty-two. 

88941—28 4 



42 SUBMARINES 

ters of property rather than life, and that prior to the 
World War loss of life was rarely involved except in case 
of attempt to escape or in case of resistance. If, "(1) A 
merchant vessel must be ordered to submit to visit and 
search to determine its character before it can be seized," 
means, that after an " order to submit to visit and search" 
a vessel may be seized without further action, it can 
scarcely be maintained that this part of Article I is " an 
established part of international law." Under accepted 
law the order is preliminary to the visit and search. By 
visit and search the grounds for seizure are determined, 
and visit and search precedes seizure, and seizure without 
visit and search would be justified in such a case only on 
the ground of resistance. The Instructions for the Navy 
of the United States issued in June, 1917, were similar 
to those of other States, and were as follows: 

47. The boarding officer shall first examine the ship's papers in 
order to ascertain her nationality, ports of departure and destina- 
tion, character of cargo, and other facts deemed essential. If the 
papers furnish conclusive evidence of the innocent character of 
vessel, cargo, and voyage, the vessel shall be released ; if they 
furnish probable cause for capture she shall be seized and sent in 
for adjudication. (1925 Naval War College, 27.) 

There is the further complication in this paragraph of 
the proposed treaty that the word " seizure," when used 
in the same article as " capture," would be presumed to be 
used in the technical sense as the terms are used in, naval 
regulations, though it is not clear that this was intended. 
Further, the object of visit and search of a vessel is not 
merely to determine " its character," but also to deter- 
mine the character of its cargo and personnel and its 
destination, conduct, etc., as grounds for seizure. 

The third paragraph of Article I states : 

A merchant vessel must not be attacked unless it refuse to 
submit to visit and search after warning or to proceed as directed 
after seizure. 

If this paragraph intends to convey in the word "at- 
tack " the meaning of " use of force against " in case of 



WASHINGTON CONFERENCE 43 

attempt to escape or resistance to visit and search, the 
statement would be in accord with practice. There would 
be some doubt as to the meaning of the words "to pro- 
ceed as directed after seizure." If a merchant vessel is 
in control of a prize crew there might be some question 
as to the interpretation of the clause. If, however, the 
merchant vessel was under escort of a vessel of war the 
liability would be recognized. It might be possible that 
after seizure a merchant vessel had been directed to pro- 
ceed without prize crew or escort to a named port ; then 
under this paragraph some maintain that the vessel would 
be liable to attack if deviating from the prescribed course. 

As the paragraph seems to read, a merchant vessel must 
not be attacked unless it refuse to submit to visit and 
search after warning or (refuse) to proceed as directed 
after seizure, it may be said that this clause " or to pro- 
ceed as directed after seizure " did not appear in the 
draft resolutions as originally presented. 

It has been claimed that the fourth paragraph greatly 
extends the liability of merchant vessels to destruction 
because stating that "A merchant vessel must not be de- 
stroyed unless the crew and passengers have been first 
placed in safety " might imply that after placing the 
crew and passengers in safety, the vessel might lawfully 
be destroyed, which is not an established part of inter- 
national law, and some have questioned how this restric- 
tion applies in case of refusal to submit to visit and 
search. 

The second part of Article I affirmed that the above 
are universal rules, and that if a submarine can not 
capture a merchant vessel in conformity with these rules, 
the existing law of nations requires it to desist from 
attack and to permit the merchant vessel to proceed un- 
molested. Verbal questions, such as whether the use of 
the word " desist " was with intention to imply that the 
attack had already begun have been put forward. In 
view of the use of the word " seizure," in preceding para- 



44 SUBMABINES 

graphs, and the use of the words "capture" and "seiz- 
ure " in this part of Article I, there has been uncertainty 
as to the significance of these words and the order of 
action implied. 

Article II invites the assent of civilized powers to 
Article I as a " statement of the established law so that 
there may be a clear public understanding throughout 
the world of the standards of conduct by which the pub- 
lic opinion of the world is to pass judgment upon future 
belligerents," This clearly aims to secure the sanction 
of public opinion for Article I, while Article III aims to 
secure legal sanction for making a man who may be 
under orders of his government and liable for disobedi- 
ence to those orders, also liable to the civil or military 
authorities of any other power, even the enemy, " as 
for an act of piracy." This is not necessarily confined to 
officers of submarines. 

Article IV affirms what has been further questioned, 
" the practical impossibility of using submarines as com- 
merce destroyers without violating, as they were violated 
in the recent war of 1914-1918, the requirements univer- 
sally accepted by civilized nations for the protection of 
the lives of neutrals and noncombatants." There are 
many different points of view as to what are " commerce 
destroyers " and in regard to other matters. 

Some of these and other queries were raised at the Con- 
ference on Limitation of Armament and in the course of 
the subcommittee discussions, as may be seen from the 
official report. 

Preparation of treaty on submarines. — The treaty, as 
stated in the official report, was not referred to technical 
subcommittees for consideration and hence the discus- 
sion of its provisions is found in the reports of the sub- 
committee on limitation of armament. 

The original proposition as to the rules for submarines 
was made by Mr. Root, of the American delegation, on 
December 28, 1921. Mr. Root said : 



PURPOSE OF TEE AT Y 45 

One fact which seemed very clear was that mere agreements 
between Governments, rules formulated among diplomats in the 
course of the scientific development of international law, had a 
very weak effect upon belligerents when violation would seem to 
aid in the attainment of the great object of victory. This has 
been clearly demonstrated in the war of 1914—18. 

Another fact established by the war was that the opinion of 
civilized nations had tremendous force and exercised a powerful 
influence on the condition of belligerents. The history of propa- 
ganda during the war had been a history of almost universal 
appeal to the public opinion of mankind and the result of the war 
had come largely as a response. 

The report further says : 

The purpose of the resolutions he was about to read was to put 
into such simple form the subject which had so stirred the feel- 
ings of a great part of the civilized world that the man in the 
street and the man on the farm could understand it. 

The first resolution, Mr. Root said, aimed at stating the exist- 
ing rules, which, of course, were known to the committee but 
which the mass of people did not know, in such a form that they 
would be understood by every one. 

Mr. Root then read the following: 

" I. The signatory powers, desiring to make more effective the 
rules adopted by civilized nations for the protection of the lives 
of neutrals and noncombatants at sea in time of war, declare that 
among those rules the following are to be deemed an established 
part of international law : 

" 1. A merchant vessel must be ordered to stop for visit and 
search to determine its character before it can be captured. 

" A merchant vessel must not be attacked unless' it refused to 
stop for visit and search after warning. 

" A merchant vessel must not be destroyed unless the crew and 
passengers have been first placed in safety. 

" 2. Belligerent submarines are not under any circumstances 
exempt from the universal rules above stated ; and if a submarine 
can not capture a merchant vessel in conformity with these rules, 
the existing law of nations requires it to desist from attack and 
from capture and to permit the merchant vessel to proceed 
unmolested." 

* * # * S& * * 

This, Mr. Root said, was a distinct pronouncement on the 
German contention during the war in regard to the conflict 
between the convenience of destruction and the action of the 
belligerent under the rules of international law. 



46 SUBMAEI^ES 

Mr. Root then read the following: 

"II. The signatory powers recognize the practical impossibility 
of using submarines as commerce destroyers without violating the 
requirements universally accepted by civilized nations for the 
protection of the lives of neutrals and noncombatants, and to the 
end that the prohibition of such use shall be universally accepted 
as a part of the law of nations, they declare their assent to such 
prohibition and invite all other nations to adhere thereto." (Con- 
ference on the Limitation of Armament, 3 p. 594. ) 

Discussion of treaty. — When taken up for discussion on 
December 29, 1921, Mr. Balfour (British) and Admiral 
de Bon (French) adhered in principle to the propositions 
of Mr. Eoot. 

Senator Schanzer said that he associated himself entirely with 
Mr. Balfour's and Admiral de Bon's remarks. The Italian delega- 
tion at the preceding meeting gave its full adherence to the aim 
to which Mr. Root's proposal tended, but they also thought that 
the question of formulating rules for the use of submarines in 
war was, above all, a legal question, which ought to be examined 
by a competent committee of jurists. (Ibid. p. 606.) 

Replying to certain questions of Senator Schanzer, Mr. 
Eoot said : 

First, as to the agreement of Resolution I of the resolutions now 
before the committee, with the second resolution relative to the 
prohibition of making use of submarines as commerce destroyers, 
which Senator Schanzer deemed inconsistent with Resolution I. 

Resolution I was a statement of existing law ; Resolution II, if 
adopted, would constitute a change) from the existing law and 
therefore it was impossible to say that it was not inconsistent. 
If it were not inconsistent, there would be no change. Resolu- 
tion II could not be consistent with Resolution I and still make 
a change. 

The report continues : 

Senator Schanzer had also suggested that the Resolution I be 
completed by including a definition of " a merchant ship." 
Throughout all the long history of international law no term had 
been better understood than the term " a merchant ship." 

It could not be made clearer by addition of definitions which 
would only serve to weaken and confuse it. The merchant ship, 

3 These references are to the full report printed in English and French. 
Government Printing Office, 1922. 



DISCUSSION OF TEEATY 47 

its treatment, its rights, its protection, and its immunities, were 

at the base of the law of nations. Nothing was more clearly or 

better understood than the subject called " merchant ship." (Ibid. 

p. 610.) 

******* 

Mr. Root declared he was opposed to the reference of this reso- 
lution to a committee of lawyers or to any other committee. He 
asked for a vote upon it here. If the delegation of any country 
represented here had any error to point out in it, he was ready 
to correct it, but he asked for a vote upon it in furtherance of the 
principle to which every one of his colleagues around the table 
had given his adherence. 

Mr. Root said that, in answering Senator Schanzer's very dis- 
criminating question regarding the relations between Resolutions 
I and II, he had omitted to say that, of course, if the second 
resolution were adopted by all the world, it would supersede 
Resolution I. This, however, would be a long, slow process and 
during the interval the law as it stood must apply until an agree- 
ment was reached. Resolution I also explained in authorized 
form the existing law and could be brought forward when the 
public asked what changes were proposed. In proposing a change, 
he said, it was necessary to make clear what the existing law 
was. It was very important to link this authoritative statement 
in Resolution I with the new principle proposed in Resolution II. 
(Ibid. p. 618.) 

Mr. Balfour, on the afternoon of December 29, 1921, 
said of the British Empire delegation— 

the members of that delegation would have preferred that the 
document itself should have been rendered unnecessary by the 
abolition of submarines. Since they had not been able to carry 
out this policy, however, Mr. Root's resolution provided them with 
an alternative. (Ibid. p. 630.) 

Mr. Hughes, on the same day, said : 

Such a declaration as the one proposed in the first resolution 
would go to the whole world as an indication that, while the com- 
mittee could not agree on such limitation, there was no disagree- 
ment on the question that submarines should never be used con- 
trary to the principles of law governing war. (Ibid. p. 636.) 

Drafting committee. — The first resolution, later Article 
I of the submarine treaty, was referred to a drafting com- 
mittee of one member from each delegation, Mr. Root 



48 SUBMAEINES 

being named from the American delegation; Sir Auck- 
land Geddes, from the British ; Admiral de Bon and Mr. 
Kammerer, from the French; Signor Ricci, from the 
Italian; Mr. Hanihara, from the Japanese. The other 
provisions were also referred to the same committee. 

Mr. Hughes, speaking of the second resolution, which 
later became Article IV of the treaty, said : 

This resolution fundamentally recognized, however, the practical 
impossibility of using submarines as commerce destroyers without 
violating the requirements universally accepted by civilized na- 
tions for the protection of neutrals and noncombatants. He as- 
sumed the resolution to mean that, while the rules of war were as 
stated in the first resolution — at least in substance — and while it 
was the sense of the powers there represented that they should 
be adhered to and clearly understood, the civilized world would 
be asked to outlaw the submarine as a weapon against commerce. 
(Ibid. p. 638 ) 

Resolution /.—Resolution I was presented by the draft- 
ing committee on January 5, 1922, as follows : 

I. The signatory powers, desiring to make more effective the 
rules adopted by civilized nations for the protection of the lives 
of neutrals and noncombatants at sea in time of war, declare that 
among those rules the following are to be deemed an established 
part of international law : 

(1) A merchant vessel must be ordered to submit to visit and 
search to determine its character before it can be seized. 

A merchant vessel must not be attacked unless it refuse to sub- 
mit to visit and search after warning or to proceed as directed 
after seizure. 

A merchant vessel must not be destroyed unless the crew and 
passengers have been first placed in safety. 

(2) Belligerent submarines are not under any circumstances ex- 
empt from the universal rules above stated ; and if a submarine 
can not capture a merchant vessel in conformity with these rules, 
the existing law of nations requires it to desist from attack and 
from seizure and to permit the merchant vessel to proceed un- 
molested. (Ibid. p. 686.) 

" Merchant vessel " and " capture." — Senator Schanzer 
requested the following entries in the minutes of the 
subcommittee : 



MERCHANT VESSEL 49 

It is declared that the meaning of Article II is as follows: 
Submarines have the same obligation and the same rights as sur* 
face craft. 
And: 

With regard to the third paragraph of Article I it is understood 
that a distinction is made between the deliberate destruction of 
a merchant vessel and the destruction which may result from 
a lawful attack in accordance with the rules of the second para- 
graph. If a war vessel under the circumstances described in 
paragraph 2 of Article I lawfully attacks a merchant vessel, it 
can not be held that a war vessel, before attacking, should put 
the crew and passengers of the merchant vessel in safety. (Ibid, 
p. 686.) 

. Later the report says : 

S nator Schanzer stated that the Italian delegation accepted 
Resolution I, but that, so far as they were concerned, the appli- 
cation of the resolution was subject to the two statements made 
by him in the subcommittee as entered on the minutes of the 
first meeting (December 31, 1921) of the subcommittee of five 
on drafting and as just read by Mr. Root. 

Senator Schanzer stated in addition that the Italian delega- 
tion understood the term " merchant vessel " in the resolution to 
refer to unarmed merchant vessels. 

Mr. Hanihara said that he wished to suggest that the word 
" seize " should be substituted for " capture " in the last paragraph. 

Mr. Root, replying to Mr. Hanihara, said that the subcommittee 
understood the word " capture " to describe the whole process, 
one step of which was seizure and that it was intended to make 
the term "capture" comprehensive. (Ibid., p. 688.) 

Senator Schanzer said he did not deny that under existing rules 
of international law a merchant vessel might properly carry a 
limited armament for defensive purposes, but he wished to say 
that the Italian interpretation of the term "merchant vessel " 
took into account this limitation. He therefore repeated that 
the Italian interpretation was in accord with his preceding decla- 
ration and with the existing rules of international law. (Ibid. p. 
692.) 

Mr. Hughes said : 

He assumed that all the representatives present accepted the 
proposition that merchant vessels, as merchant vessels — a category 
well known — stood where they were under the law, and that this 
resolution defined the duties of submarines with respect to them. 
(Ibid. p. 692.) 



50 SUBMAEINES 

Mr. Root later himself explained Article I : 

It will be observed that the statement in this treaty of the 
rules relating to visit and search and seizure does not undertake 
to state all the rules of international law upon that subject. It 
was not intended to state all such rules. It was not intended to 
be a codification of international law relating to visit and search 
and seizure. The purpose was to state only the most important 
rules for the protection of innocent life so briefly and simply that 
every intelligent person could understand them, and to refrain 
from- confusing the unscientific mind by the introduction of the 
less important details. This was required by the main consider- 
ation upon which the treaty relies for its effectiveness. The 
treaty is not merely a declaration of existing law. It is not 
merely an agreement between governments resulting from diplo- 
matic negotiation. It is all these, but above all, it is an appeal 
to the public opinion of mankind to establish and maintain a 
fundamental rule of morals applied to international conduct in 
the form of a rule of international law. (Men and Policies, p. 
462. Address American Society of International Law, April 27, 
1922.) 

Resolution II. — Resolution II later became Resolution 
III and finally Article IV of the submarine treaty. As 
presented on the afternoon of January 5, 1922, it was as 
follows : 

" The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating the 
requirements universally accepted by civilized nations for the 
protection of the lives of neutrals and noncombatants and to the 
end that the prohibition of such use shall be universally accepted 
as a part of the law of nations they declare their assent to such 
prohibition and invite all other nations to adhere thereto." (Con- 
ference on the Limitation of Armament, p. 694.) 
Mr. Sarraut then read the following statement : 
" The Germans have made war on commerce almost exclusively 
with their submarines, which were instructed to sink without 
mercy the merchant vessels of the enemy with the object of de- 
stroying that enemy's commerce. The abominable program was 
made worse by sinking, without distinction, steamers and hospital 
ships as well as vessels carrying cargo — neutrals as well as those 
of the enemy. These ships were destroyed without the passengers 
and crew having been first put in a place of safety. France has 
already proclaimed and she has reiterated her denunciation of the 
barbarous methods thus used contrary to the law of humanity and 



COMMEKCE DESTKOYERS 51 

she has condemned the pitiless destruction of merchant ships as 
contrary to international law. With these views, the French dele- 
gation fully indorses the spirit of Senator Root's resolution and of 
the amendment proposed by Mr. Balfour. But the delegation con- 
siders it desirable that the sentiment of condemnation of the meth- 
ods employed in the last war should be expressed in the resolution, 
and for this purpose it suggests the addition of the words ' in the 
manner that was employed in the last war ' at the end of the 
phrase. 

" The first phrase of the resolution would then read as follows : 

" ' The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating the 
requirements universally accepted by civilized nations for the pro- 
tection of the lives of neutrals and noncombatants in the manner 
that was employed in the last war.' " 

The chairman said that Mr. Sarraut had called attention to the 
amendment which had been proposed by Mr. Balfour. The resolu- 
tion, as it had been read a moment before, had not included that 
amendment and therefore it should be restated ; he would, there- 
fore, read Resolution III with the amendment proposed by Mr. 
Balfour : 

" The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating the 
requirements universally accepted by civilized nations for the pro- 
tection of the lives of neutrals and noncombatants, and to the end 
that the prohibition of such use shall be universally accepted as a 
part of the law of nations they now accept that prohibition as 
henceforth binding as between themselves, and they invite all 
other nations to adhere thereto." 

That was the resolution before the committee with the amend- 
ment suggested by Mr. Balfour. Mr. Sarraut had suggested that 
it should also embrace a reference to the methods adopted by the 
Imperial German Government in the last war, which had received 
general condemnation. As he understood it, the resolution, with 
the amendment of Mr. Balfour and the further amendment pro- 
posed by Mr. Sarraut, would read as follows : 

" The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating the 
requirements universally accepted by civilized nations for the 
protection of the lives of neutrals and noncombatants in the man< 
ner that was employed in the last war, and to the end that the 
prohibition of such use shall be universally accepted as a part of 
the law of nations, they now accept that prohibition as henceforth 
binding as between themselves and they invite all other nations 
to adhere thereto." 



52 SUBMAEINES 

The question before the committee was the adoption of this 
resolution. Before the discussion proceeded, he wished to ask Mr. 
Sarraut whether the words which Mr. Sarraut desired inserted, to 
wit, " in the manner that was employed in the last war," were 
to be inserted at the place which had been indicated. 

Mr. Boot said that Admiral de Bon and he had worked out a 
phrase on the exact line of Mr. Sarraut's and he wondered whethei 
it would not meet the purpose. After the word " violating " the 
words " as they were violated in the recent war of 1914-1918," 
should be inserted, so that the resolution would read : 

" The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating, as 
they were violated in the recent war of 1914-1918, the require- 
ments universally accepted by civilized nations," etc. 

The chairman asked whether this wording was agreeable to Mr. 
Sarraut. 

Mr. Sarraut assented. 

The chairman said he would read the complete resolution, so 
that there would be no question upon what action was being 
taken : 

" The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating, as 
they were violated in the recent war of 1914-1918, the require- 
ments universally accepted by civilized nations for the protection 
of the lives of neutrals and noncombatants, and to the end that 
the prohibition of such use shall be universally accepted as a part 
of the law of nations they now accept that prohibition as hence- 
forth binding as between themselves, and they invite all other 
nations to adhere thereto." 

Mr. Balfour said he wished to ask a question in regard to the 
amendment, now slightly modified, which Mr. Sarraut had pro- 
posed and which read as follows : 

" The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating, as 
they were violated in the recent war of 1914-1918, the require- 
ments universally accepted by civilized nations," etc. 

If that were intended merely as an illustration it might be wise 
or unwise; it might be necessary or unnecessary; at any rate, 
used in this manner, it could do no harm. It added form and 
perhaps picturesqueness to the whole resolution. He wished to 
ask, however, whether it was not possible so to twist the phrase 
that the article would apply only to German methods. The in- 
genuity of man for wrongdoing was very great. Was it not 
unfortunate that the wrongdoers should be hampered only by 
the methods adopted by the Germans? Would it not be possible 



PROHIBITION OF SUBMARINES 53 

for them to say, "It is true we have used our submarines as com- 
merce destroyers, but we have not used them as the Germans 
did, and consequently we are not violating this resolution." 
Perhaps the question he asked was oversubtle, but it appeared to 
be worthy of consideration. 

Mr. Root asked whether that question would not be ooviated 
by simply repeating the words " The use of submarines as com- 
merce destroyers " in the place of " of such use." 

Mr. Balfour replied in the affirmative. 

The chairman asked whether that amendment was acceptable. 

Admiral de Bon said that his reasons, as already stated by Mr. 
Sarraut, were based upon the fear that the Germans might use 
the first draft suggested as a pretext to justify some of their 
actions during the recent war. They might claim that, if the 
Washington Conference took the ground that it was not possible 
to use submarines otherwise than in contravention of actual inter- 
national law, they were in a measure absolved. This was the only 
idea that he had sought to convey. In his opinion there ought to 
be a full and complete condemnation of these methods. It was for 
this reason that the French delegation had desired specifically to 
object to German practices and thus to remove all possibility of 
their being able to use the resolution in question to justify their 
conduct. 

The chairman asked whether the amendment as suggested was 
acceptable. The amendment was that the clause : "To the end 
that the prohibition of such use shall be universally accepted as a 
part of the law of nations " should read " to the end that the 
prohibition of the usa of submarines as commerce destroyers shall 
be universally accepted as a part of the law of nations." 

The chairman said that the reason he asked whether this was 
acceptable was that it was an amendment to meet the amendment 
suggested by Mr. Sarraut, and therefore really formed part of 
the amendment in the line suggested, and he thought it would be 
well to know whether there was any objection to the amplifica- 
tion of Mr. Sarraut's amendment in that manner. 

Mr. Sarraut replied that he had no objection. 

The chairman said that in view of what had just been said by 
Admiral de Bon, it might be well to call attention to the fact that 
this resolution was not, and did not purport to be, a statement 
of existing law ; it purported to go beyond existing law and to pro- 
hibit the use of submarines as commerce destroyers. (Ibid. pp. 
6&J-700. ) 

The signatory powers recognize the practical impossibility of 
using submarines as commerce destroyers without violating, as 
they were violated in the recent war of 1914r-1918, the require- 



54 SUBMAEINES 

ments universally accepted by civilized nations for the protection 
of the lives of neutrals and noncombatants, and to the end that 
the prohibition of the use of submarines as commerce destroyers 
shall be universally accepted as a part of the law of nations they 
now accept that prohibition as henceforth binding as between 
themselves, and they invite all other nations to adhere thereto. 
(Ibid. p. 710.) 

" Commerce destroyer" — Lord Lee asked what was the 
precise meaning of the term " commerce destroyer." 

He did not know if " commerce destroyer " was a recognized 
legal term or whether it included the processes of attack and 
seizure referred to in the first resolution. 

Mr. Root said he believed it covered the whole process. He 
thought that " commerce destroyer " was a perfectly well-known 
term. 

Lord Lee said that doubts were being expressed in his delegation 
as to the precise meaning of the phrase " commerce destroyer." 
He asked whether the term " for seizures or attacks on commerce " 
would not produce the same effect. 

Mr. Root said he thought that if the committee undertook to go 
into the details of the processes, it would find itself involved in 
statements which were neither clear nor intelligible to the common 
mind, and that it really did not accomplish its purpose as well as 
would be done by the use of perfectly well-known terms, such as 
"commerce destroyers." (Ibid. p. 700.) 

% >;: :js % * H* >H 

Mr. Hanihara said he desired to be informed with respect to 
the exact meaning of the term "commerce destroyer." As he had 
already pointed out in a previous discussion, he believed that the 
words were intended to apply to vessels suitable for destruction 
of merchant shipping. * * * 

Mr. Root said he thought that the prohibition would apply to 
submarines attacking or seizing or capturing or destroying mer- 
chant vessels under any circumstances, so long as the vessel re- 
mained a merchant vessel ; he also* thought it was necessary to 
have an effective prohibition to have it so apply. (Ibid., p. 703.) 

Article, IV. — On January 6, 1922, Mr. Eoot, discussing 
what later became Articles I and IV, said of Article IV : 

The next resolution, which forbade the use of submarines as 
commerce destroyers, that was to say, forbade submarines attack- 
ing merchant ships, and which if it were to become a part of the 
law of nations would supersede these other rules so far as sub- 
marines were concerned — but which would not supersede them 



ADMIRAL KNAPP'S COMMENT 55 

until it had become a part of the law of nations — was an entirely 
different proposition. It certainly was not competent for them 
to make an agreement between the five powers here that would 
produce the effect of a law of nations upon which they could de- 
nounce a punishment as for piracy. (Ibid., p. 722.) 

Presentation to conference. — On February 1, 1922, at 
the plenary session at the Conference on the Limitation 
of Armament, Mr. Root presented the treaty on subma- 
rines with the following explanation : 

You will observe that this treaty does not undertake to codify 
international law in respect of visit, search, or seizure of merchant 
vessels. What it does undertake to do is to state the most important 
and effective provisions of the law of nations in regard to the 
treatment of merchant vessels by belligerent warships, and to 
declare that submarines are under no circumstances exempt from 
these humane rules for the protection of the life of innocent 
noncombatants. 

It undertakes further to stigmatize violation of these rules, and 
the doing to death of women and children and noncombatants 
by the wanton destruction of merchant vesse-s upon which they 
are passengers, as by a violation of the laws of war which, as be- 
tween these five great powers and all other civilized nations who 
shall give their adherence thereto, shall be henceforth punished 
as an act of piracy. 

It undertakes further to prevent temptation to the violation of 
these rules by the use of submarines for the capture of merchant 
vessels and to prohibit that use altogether. It undertakes fur- 
ther to denounce the use of poisonous gases and chemicals in 
war as they were used to the horror of all civilization in the war 
of 1914-1918. (Ibid, p. 268.) 

Admiral Knapp^s comment. — A resolution for the ap- 
pointment of a commission of jurists to consider whether 
existing rules cover new methods of warfare was adopted 
at the Conference on the Limitation of Armament, but a 
later resolution removed from their competence the con- 
sideration of submarines and gas warfare. Of this reso- 
lution Admiral Harry S. Knapp, United States Navy, 
writing shortly before his death, said : 

But the most extraordinary limitation on the powers of the 
commission is to be found in resolution No. 2 of the Washington 



56 SUBMARINES 

Conference. This was adopted by the same signatory powers that 
adopted resolution No. 1 and at the same session. It reads : 

" Resolved,, That it is not the intention of the powers agreeing 
to the appointment of a commission to consider and report upon 
the rules of international law respecting new agencies of warfare 
that the commission shall review or report upon the rules or 
declarations relating to submarines or the use of noxious gases 
and chemicals already adopted by the powers in this conference." 

Resolution No. 2 can only mean that the delegates of the signa- 
tory powers were so entirely satisfied with the work of the con- 
ference regarding submarine and gas warfare as to regard it as 
the last word in form and substance; otherwise they would not 
have removed the right to review or report upon the rules and 
declarations of that treaty from the commission they themselves 
had just created to study the broad question, of which submarine 
and gas warfare are such integral and outstanding parts. 

Such satisfaction is not universally shared. The need for 
revision of the laws of war is manifest ; and it is regrettable that 
a commission of distinguished jurists should have been called 
together for that purpose with such a limitation upon their action 
as that imposed by resolution No. 2. As for treaty No. 2, an at- 
tempt is made in what follows to show that it needs revision, 
especially in respect of its provisions regarding submarine war- 
fare — a revision that The Hague commission would have been so 
competent to make. 

The present criticism of the treaty is not born of any lack of 
sympathy with its purpose on the part of the writer. On the con- 
trary, he has exerted such influence as he had toward the adop- 
tion of a more radical solution of the submarine problem than 
the treaty attempts. He would prefer to see the submarine abol- 
ished. That view has not prevailed, however, and worse still, the 
Washington Conference failed to put any limitation upon the num- 
bers of submarines, relative or absolute. It consequently failed, 
potentially at least, to stop competition in submarine building. 
Under existing circumstances, and having in mind the submarine 
practices of the Germans during the war — practices that were 
such a blot upon the German national reputation — it was all-im- 
portant that any agreement on the subject reached by the Wash- 
ington Conference should be correct in substance and form ; and 
this is especially true if that agreement was to be the final word on 
the subject. It was the last word in so far as The Hague com- 
mission is concerned ; but it can not be doubted that a future 
conference on the laws of maritime warfare, composed of dele- 
gates from all maritime powers so that the voice of the confer- 
ence will carry real international authority, will refuse to be 



EEPOET OF AMERICAN" DELEGATION 57 

shackled by such a limitation as that prescribed by resolution No. 
2 of the Washington Conference. (39 Am. Pol. Sci. Rev., June, 
1924, p. 203.) 

Report of American delegation. — In the report of the 
American delegation to the President on February 9, 
1922, there are reprinted certain parts of the report of the 
advisory committee of twenty-one, and of this report on 
submarines the delegation says " this report was presented 
by the American delegation as setting forth in a succinct 
manner the position of their Government." In this re- 
port it was stated : 

The submarine as a man-of-war has a very vital part to play. 
It has come to stay. It may strike without warning against com- 
batant vessels, as surface ships may do also, but it must bei re- 
quired to observe the prescribed rules of surface craft when 
opposing merchantmen as at other times. (Conference on the 
Limitation of Armament. Sen. Doc. No. 126, 67th Cong., 2d sess., 
p. 814.) 

•j?. % % ■% % jf. % 

The committee is therefore of the opinion that unlimited warfare 
I>y submarines on commerce should be outlawed. The right of 
visit and search must be exercised by submarines under the same 
rules as for surface vessels. (Ibid. p. 815.) 

Immediately following this report is the treaty upon 
submarines, and as introductory thereto is the following 
paragraph : 

While the conference was unable either to abolish or to limit 
submarines, it stated, with clarity and force, the existing rules 
of international law which condemned the abhorrent practices 
followed in the recent war in the use of submarines against mer- 
chant vessels. (Ibid. p. 815.) 

The report also repeats Mr. Root's statement to the 
conference when, speaking of the submarine treaty and 
the rules of maritime war, he said : 

It undertakes further to prevent temptation to the violation of 
these rules by the use of submarines for the capture of mer- 
chant vessels, and to prohibit that use altogether. (Ibid. p. 816.) 

Summary. — Article I of the treaty, aiming as the whole 
treaty does, to protect the lives of neutrals and noncom- 

88941—28 5 



58 SUBMARINES 

batants, considers in successive paragraphs visit and 
search before seizure, attack after refusing visit and 
search, or to pro:eed as directed after seizure, destruction 
without placing personnel in safety, and the application 
of these so-called universal rules, and adds — 

and if a submarine can not capture a merchant vessel in con- 
formity with these rules the ex : sting law of nations requires 
it to desist from attack and from seizure and to permit the mer- 
chant vessel to proceed unmolested. (Conference on Limitation of 
Armament, p. 836.) 

By this last clause the submarine is required under 
certain conditions, to desist " from attack and from 
seizure." Manifestly it is not the purpose to deny the 
right of visit and search, but, as Mr. Root says, "to de- 
clare that submarines are, under no circumstances, exempt 
from those humane rules for the protection of the life 
of innocent noncombatants," and Article I itself simply 
declares " that among the rules adopted by civilized na- 
tions " " the following are to be deemed an established part 
of international law." The discussion in the conference 
indicates this understanding. 

The conclusion is that Article I does not change exist- 
ing law but, as said in Article II, aims to establish " a 
clear public understanding throughout the world of the 
standards of conduct by which the public opinion of the 
world is to pass judgment upon future belligerents." 

Further in Article III penalty " as if for an act of 
piracy " is provided for " attacks upon and the seizure 
and destruction of merchant ships " in violation of these 
rules. 

In the original proposal Mr. Root stated the first reso- 
lution as follows : "A merchant vessel must be ordered to 
stop for visit and search to determine its character before 
it can be captured." Later, in reply to Mr. Hanihara, 
who suggested " seize " instead of " capture " in a later 
paragraph of the same article, Mr. Root said " that the 
subcommittee understood the word ' capture ' to describe 
the whole process, one step of which was seizure, and it 



EAKLY OPINIONS 59 

was intended to make the term ' capture ' comprehensive. " 
(Ibid. p. 688.) 

It was not understood that this term included visit and 
search, as by the article itself visit and search must pre- 
cede capture or seizure, and was to determine the char- 
acter of the merchant vessel and its liability to seizure or 
capture. 

Early opinions. — Visit and search as necessarily pre- 
ceding seizure or capture has long been recognized. Sir 
William Scott in the case of the Maria in 1799 declared 
he takes it to be incontrovertible — 

That the right of visiting and searching merchant ships upon the 
high seas, whatever be the ships, whatever be the cargoes, what- 
ever be the destinations, is an incontestable right of the lawfully 
commissioned cruisers of a belligerent nation. I say, be the ships, 
the cargoes, and the destinations what they may, because, till they 
are visited and searched, it does not appear what the ships, the 
cargoes, or the destinations are ; and it is for the purpose of ascer- 
taining these points that the necessity of this right of visit and 
search exists. This right is so clear in principle, that no man 
can deny- it who admits the legality of maritime capture ; because 
if you are not at liberty to ascertain by sufficient inquiry whether 
there is property that can be legally captured, it is; impossible to 
capture. ... In short, no man in the least degree con- 
versant in subjects of this kind has ever, that I know of, breathed 
a doubt upon it. (1 C. Robinson, p. 340'.) 

Similarly in the case of the Marianna Flora Mr. Justice 
Story said of visit and search : 

This right is strictly a belligerent right, allowed by the general 
consent of nations in time of war, and limited to those occasions. 
(11 Wheaton, 1 ) 

No treaty would renounce such a generally recognized 
right as visit and search, which is the subject of so many 
treaty agreements, without express stipulation. From a 
practical standpoint the exercise of visit and search when 
camouflage or other concealment of identity are possible 
and much resorted to is essential to the conduct of war 
on the seas. This seems to be admitted in the first clause 
of the provisions of Article I which states " a merchant 



60 STJBMABINES 

vessel must be ordered to submit to visit and search to 
determine its character before it can be seized." Further, 
it may be said that visit and search does not necessarily 
imperil " the lives of neutrals and noncombatants " which 
it is the aim of the submarine treaty to protect. 

German practice, 19H-1918. — Germany on February 4, 
1915, proclaimed the waters about Great Britain and Ire- 
land a war zone in which every enemy merchant ship 
would, after February 18, " be destroyed without it being 
always possible to avert the dangers threatening the crews 
and passengers on that account." Neutral vessels were 
warned that they were exposed to danger in the war zone, 
because neutral flags had been used by belligerent mer- 
chantmen and because of possible accidents. 

In what has been called the " strict accountability " note 
of Mr. Bryan of February 10, 1915, it was said : 

It is, of course, not necessary to remind the German Government 
that the sole right of a belligerent in dealing with neutral vessels 
on the high seas is limited to visit and search, unless a blockade is 
proclaimed and effectively maintained, which this Government does 
not understand to be proposed in this case. To declare or exercise 
the right to attack and destroy any vessel entering a prescribed 
area of the high seas without first certainly determining its bellig- 
erent nationality and the contraband character of its cargo would 
be an act so unprecedented in naval warfare that this Government 
is reluctant to believe that the Imperial Government of Germany 
in this case contemplates it as possible. The suspicion that enemy 
ships are using neutral flags improperly can create no just pre- 
sumption that all ships traversing a prescribed area are subject to 
the same suspicion. It is to determine exactly such questions that 
this Government understands the right of visit and search to have 
been recognized. (Spec. Sup. Amer. Jour. Int. Law, July, 1915, 
p. 86.) • 

Germany had previously attempted to justify, on the 
ground of retaliation, its action, which was admittedly 
beyond the law, saying : 

Great Britain invokes vital interests of the British Empire 
which are at stake in justification of its violations of the law 
of nations, and the neutral powers appear to be satisfied with 
theoretical protests, thus actually admitting the vital interests of 



AMERICAN DISCUSSION- 61 

a belligerent as sufficient excuse for methods of waging war of 
whatever description. 

The time has come for Germany also to invoke such vital 
interests. It therefore finds itself under the necessity, to its 
regret, of taking military measures against England in retaliation 
of the practice followed by England. (Ibid. p. 85.) 

In the German note of February 16, 1915, it was said : 

Moreover, the British Government have armed English mer- 
chant vessels and instructed them to resist by force the German 
submarines. In these circumstances it is very difficult for the 
German submarines to recognize neutral merchant vessels as such, 
for even a search will not be possib-e in the majority of cases, 
since the attacks to be anticipated in the case of a disguised 
English ship would expose the commanders conducting a search 
and the boat itself to the clanger of destruction. 

The British Government would then be in a position to render 
German measures illusory if their merchant marine persists in the 
misuse of neutral flags and neutral vessels are not marked in 
some other manner admitting of no possible doubt. (Ibid. p. 94.) 

Sir Edward Grey, in a note of February 19, 1915, 
stated : 

The obligation upon a belligerent warship to ascertain definitely 
for itself the nationality and character of a merchant vessel before 
capturing it and a fortiori before sinking and destroying it has 
been universally recognized. (Ibid. p. 97.) 

American discussion. — On February 20, 1915, the 
United States, anxious to establish a modus vivemdi be- 
tween the belligerents, proposed " That neither will use 
submarines to attack merchant vessels of any nationality 
except to enforce the right of visit and search." Many 
notes between the belligerents and the United States were 
exchanged, and Mr. Bryan, replying on March 30, 1915, 
to certain British notes, said : 

The order in council of the 15th of March would constitute, were 
its provisions to be actually carried into effect as they stand, a 
practical assertion of unlimited belligerent rights over neutral 
commerce within the whole European area and an almost unquali- 
fied denial of the sovereign rights of the nations now at peace. 

This Government takes it for granted that there can be no 
question what those rights are. A nation's sovereignty over its 



62 SUBMARINES 

own ships and citizens under its own flag on the high seas in time 
of peace is, of course, unlimited ; and that sovereignty suffers no 
diminution in time of war, except in so far as the practice and 
consent of civilized nations has limited it by the recognition of 
certain now clearly determined rights, which it is conceded may 
be exercised by nations which are at war. 

A belligerent nation has been conceded the right of visit and 
search, and the right of capture and condemnation, if upon exami- 
nation a neutral vessel is found to be engaged in unneutral service 
or to be carrying contraband of war intended for the enemy's 
government or armed forces. (Ibid. p. 117.) 

In the note of April 21, 1915, to the German ambassa- 
dor, the Secretary of State said of the Government of the 
United States : 

It has, indeed, insisted upon the use of visit and search as an 
absolutely necessary safeguard against mistaking neutral vessels 
for vessels owned by an enemy and against mistaking legal cargoes 
for illegal. (Ibid. p. 128.) 

On June 9, 1915, in a note to Germany, the United 
States said: 

Nothing but actual forcible resistance or continued efforts to 
escape by flight when ordered to stop for the purpose of visit on 
the part of the merchantman has ever been held to forfeit the 
lives of her passengers or crew. (Ibid. p. 139.) 

The United States has therefore insisted upon the ne- 
cessity of visit and search before seizure in order to safe- 
guard neutral rights and has denied the right to attack 
merchant vessels except on the ground of resistance or 
attempts to escape. 

Review* of proposed treaty. — Article IV of the subma- 
rine treat} 7 is a " prohibition of the use of submarines as 
c( )mmerce destroyers." 

In reply to Lord Lee's query as to whether " commerce 
destroyer " was a recognized legal term, or whether it in- 
cluded the process of attack and seizure referred to in the 
first resolution, " Mr. Root said he believed it covered the 
whole process. He thought ' commerce destroyer ■ was a 
perfectly well-known term." (Conference on Limitation 
of Armament, p. 700.) 



REVIEW OF PROPOSED TREATY 63 

After discussion in the committee on limitation of 
armament on January 5, 1922, the words " commerce de- 
stroyer " were retained instead of substituting the words 
" submarines for operations against merchant vessels." 
During this discussion Senator Schanzer said : 

Submarines were military weapons and should be allowed the 
privileges of military weapons. They might even act in the same 
way as surface vessels. (Ibid. p. 708.) 

The expression " The signatory powers recognized the 
practical impossibility of using submarines as commerce 
destroyers without violating, as they were violated in 
the recent war of 1914-1918, the requirements universally 
accepted by civilized nations for the protection of the 
lives of neutrals and noncombatants " was deliberately 
adopted with the understanding that the words " com- 
merce destroyers " " was a perfectly well-known term." 
This well-known term " commerce destroyers " in the 
common dictionary sense means a vessel " intended to 
prey on, capture, and destroy the merchant shipping of 
an enemy, generally one of high speed and light arma- 
ment." As this article was adopted at the conference 
where limitation of naval armament was a prime object, 
it may be presumed that this meaning of the word was 
intended, particularly as the phrase in the article is 
"using submarines as commerce destroyers"; i. e., as 
light, fast vessels might be used to prey on commerce, or 
as in 1914-1918 submarines were used putting in peril the 
lives of neutrals and noncombatants. 

According to the final report of the American delega- 
tion, quoting from the report of the advisory committee 
of twenty-one, the opinion of the American Government 
was that submarines would continue to be used against 
combatant ships and as scouts, and that " unlimited war- 
fare by submarines on commerce should be outlawed. 
The right of visit and search must be exercised by sub- 
marines under the same rules as for surface vessels." 
(Sen. Doc. 126, 67th Cong., 2d sess., p. 815.) The report 



64 SUBMARINES 

of the American advisory committee of twenty-one also 
stated: "If the submarine is required to operate under 
the same rule as combatant surface vessels no objection 
can be raised as to its use against merchant vessels." 
(Ibid. p. 813.) " This report was presented by the 
American delegation as setting forth in a succinct manner 
the position of their Government." (Ibid. p. 813.) 

Article VI of the proposed treaty in relation to the use 
of submarines and noxious gases in warfare provided 
that it should take effect on the deposit of ratifications at 
Washington by all the signatory powers. Up to the pres- 
ent date, December 31, 1926, these ratifications have not 
been deposited ; therefore the rules governing lawful sub- 
marine warfare remain unchanged. 

CONCLUSION 

A belligerent submarine lawfully commissioned as a 
vessel of war may exercise the rights of a vessel of war 
but its nature gives it no special rights or privileges. 



Situation III 

ANGARY 



In case of urgent need, may a belligerent state exercise 
what was formerly called the right of angary? 

CONCLUSION 

In case of urgent need and "in absence of contrary 
treaty stipulation," a belligerent state may exercise the 
right of angary. 

NOTES 

Angary. — The right of angary is in its origin traced to 
ancient Asiatic sources. In these ancient days it was 
applied to public taking over of means of transportation 
on land. Later it was extended to means of transporta- 
tion on the sea, even on the high sea. In these early days 
necessity was not always the ground of exercising the 
right of angary nor was a state of war ej^ential. It was 
sometimes considered lawful to seize ships for expedi- 
tions into unknown regions in time of peace. Compensa- 
tion was to be paid and the purpose was to be stated. In 
many treaties, particularly when use in war is the ground, 
provision is made for advance payment, probably on the 
theory that the issue of the war might be uncertain, and 
advance payment removed risk. Many treaties provided 
for the abolition of all exercise of the right of angary. 

Of about 50 treaties mentioning some form of angary 
or requisition before 1900, only about one-third are un- 
favorable to the exercise of the right, and of the 5 since 
1900, 3 are unfavorable. 

Neutral railway material in time of war. — Article 54 
of Hague Convention II, 1899, was as follows : 

Railway material coming from neutral states, whether the 
property of those states, or of companies, or of private persons, 
shall be sent back as soon as possible. 

65 



66 ANGARY 

The Second Hague Conference, 1907, in Hague Con- 
vention V, article 19, provided : 

Railway material corning from the territory of neutral powers, 
whether it be the property of the said powers or of companies 
or private persons, and recognizable as such, can be requisitioned 
and utilized by a belligerent only in the case of, and to the extent 
demanded by, absolute necessity. It shall be sent back as soon 
as possible to the country of origin. 

A neutral power may likewise, in case of necessity, retain and 
utilize to a corresponding extent material coming from the terri- 
tory of the belligerent power. 

Compensation shall be paid by one party or the other in propor- 
tion to the material used, and to the period of usage. 

In the first report of the second commission reference 
was made to the difference of opinion on neutral property 
among the delegations, but it was stated that the ma- 
jority of the commission was of the opinion that — 

Article 54 does not absolutely forbid a belligerent to utilize the 
material of neutrals found in the territory occupied by its army. 
It is limited to imposing upon him the obligation to send back 
this material as soon as possible to the rightful possessor. 

On the question of principle raised by the Luxemburg amend- 
ments various opinions came to light in the commission and its 
committee of examination. Some delegations utterly denied that 
a belligerent has a right of requisitioning and utilizing neutral 
material found in its territory. Among those who admitted this 
right within the limits of article 70, some claimed in favor of the 
neutral state an indemnity as well as the right of retaining, to 
an equal extent, material belonging to the belligerent. Others 
were willing to grant to the neutral state only the indemnity with- 
out the right of retaining material, or only this right of retention 
to the exclusion of any indemnity. 

It is impossible to reconcile these various opinions, which are 
contradictory on more than one point. The project contains what 
may be called an intermediate solution. The first paragraph 
of article 66, which the German delegation proposed in order to 
take into account the amendments presented by the delegation of 
Luxemburg, does not deny the belligerents the right of requisi- 
tioning and utilizing material belonging to neutral states or their 
grantees, but it restricts it to the cases where such a step is de- 
manded by an imperative necessity. 

For example, when mobilization takes place, it would be liter- 
ally impossible to proceed to a separation of all the railway 



KAILWAY MATERIAL 67 

material belonging to neutral states or their grantees. Even 
were it thus set apart, this material could nevertheless not be 
sent to its country of origin as long as the military transporta- 
tion superseded and checked all other schedules. This situation 
of force majeure might occur even before the opening of hostili- 
ties. It could also arise when states are mobilizing their forces 
with the aim of enforcing respect for their neutrality during a 
war that has already been declared or one that is imminent. 

All that can be done here is to restrict the right of requisition 
to the narrow limits stated in article 66, paragraph 1, and to rec- 
ognize the right of the neutral state to the retention reserved to it 
in the second paragraph of the same article. This right could 
not be considered as having the character of reprisals. The neu- 
tral state will have recourse to it because, deprived of the mate- 
rial retained by the belligerent, it, in its turn, has to requisition 
the material that it finds in its territory to insure its domestic as 
well as its international railroad service. It will exercise this 
right only to the same extent and will be careful, by preserving 
an even balance between the belligerents, to observe its duty of 
impartiality which is too inherent in neutrality to require the 
express mention proposed by the Serbian delegation. Finally, the 
project imposes on the state making use of the right of requisition, 
the obligation to pay to the rightful possessors of the material an 
indemnity proportionate to the material utilized and to the time 
it is held. In this provision the project merely sanctions a prin- 
ciple which is already practiced everywhere in times of peace and 
whose application can not, it seems, cause any difficulty. (I 
Proceedings of the Hague Peace Conferences, Carnegie Endowment 
for International Peace, p. 157.) 

In discussing the rights and exemptions of the means 
of transportation, Major General von Giindell, of the 
German delegation, said on August 9, 1907 : 

Making allusion only in passing to the rights of embargo and of 
angary which, though disputed, are not yet abolished in common 
law and which constitute the right of requisition applied to naval 
war, I call attention to the difficulties of a purely technical nature 
that stand in the way of fixing such a delay in the domain of rail- 
ways. While the sea is free for navigation and the voyages of 
ships are made independently of rails and points so that each ship 
which is not retained by the authorities can leave port whenever it 
deems best, railway service is bound by the strictest rules, which 
can not be violated without running great danger, and that is all 
the more the case during the mobilization of the army ; this is why 



68 ANGARY 

it is absolutely impossible to send back neutral material at the 
moment war is declared without deranging the entire transporta- 
tion system of mobilization and concentration. (Ibid. Vol. Ill, 
p. 218.) 

The 'World War. — The World War revived many prac- 
tices to which there had been little resort in recent wars. 
Requisitions were mentioned in treaties and other inter- 
national documents, but the requisitioning of neutral 
property on land and on water had not been common. 
The requisitioning of private property on land had been 
necessary in nearly all wars, but the World War so taxed 
the resources of all states that extreme measures were 
taken in many states. 

Law of Turkey, 1916. — Private vessels of nationals 
were requisitioned during the World War. In some of 
these orders for requisition, however, no distinction was 
made as to the flag which the vessel flies. As an example, 
the Turkish law of requisition is somewhat more detailed 
than many. It is evident from article 5 of this law that 
national vessels are under consideration, as the services 
of officers and crew may in, case of necessity be retained 
for service. This was sometimes the practice in early 
times, without regard to the nationality of the crew, but 
in later times neutral persons have not been compelled to 
serve, even when the vessels are taken over. 

Turkey, a law on the requisition of the means of trans- 
portation, March IS, 1916, 

Article 1. All through the mobilization and in case of necessity 
the Imperial Government, upon the advice of its Ministers of War 
and Marine, will proceed to the requisition of all means of trans- 
port belonging to individuals and found on seas, rivers, lakes, 
and canals, as well as their tools and materials. 

Art. 2. The means of transport will, upon the request of the 
War Office or of Admiralty, be requisitioned by the captain of the 
port, or, in his absence, by the highest civil official of the locality, 
or by the commanding officer of the Ottoman Imperial Fleet, or by 
the commander of a man-of-war, or, in a word, by the Ottoman 
diplomatic or consular officials as well as by any member of the 
Ottoman Foreign Office. Means of transport will be used for 



TUEKISH LAW 69 

military purposes and the act of requisition will be notified by 
writing to the proprietor. 

Art. 3. If on board the steamers and vessels requisitioned there 
are goods not belonging to the company to which the steamer be- 
longs, such goods will be disembarked, and, under the responsibility 
of the local authorities, will be kept in emporiums designated by 
the officials mentioned in art. 2, The proprietors will be imme- 
diately notified of this act. All damages caused through un- 
loading will be indemnified by the Government. Goods easy to be 
spoiled ought to be taken away immediately by the proprietor and 
others must be removed within three months' time after the date 
of notification given to the proprietor. If not, they will be sold 
by public auction under the care of officials in charge of these 
goods. The money realized from the sale will be deposited in the 
state treasury. If the goods are sold abroad, money received 
for their sale will be sent to the Ministry of Finances by an 
official of the Foreign Office. 

Art. 4. When the requisition takes place a proces verbal will 
be drawn to that effect, besides an inventory containing the names 
of all objects and materials: belonging to the company, and also 
those of requisitioned goods will be drawn. The proces verbal 
and the inventory will be written by the functionaries who have 
effected their requisition, after an understanding in the matter 
with the proprietor of the goods, the captain or, in his absence, 
his agent. These documents will be written in duplicate, which 
will be duly signed and sealed by the two parties interested. A 
copy of the proces verbal and the inventory in question, as well 
as another proces verbal, will be drawn by an expert, containing 
a list and the value of the goods requisitioned. A copy of the 
proces verbal and the inventory, as well as the proces verbal 
prepared by the expert appointed to estimate the value of the 
requisitioned objects, will be transmitted to the War Office or the 
Ministry of Marine. The other copy will be given to the proprie- 
tor, or, in his absence, to his agent or captain. 

Art. 5. If on board the steamer requisitioned there are officers 
or crew, who are not liable for military service, such officers or 
crew will, in case of necessity, be kept to work on board with the 
same wages as they used to get. On those who are liable for 
military service, the provisions of the law on military service 
will be fully applied. The officers and the engineers of the 
steamer requisitioned, whether liable to military duty or not and 
who are disabled while in service, will be entitled to infirmity 
pensions as specified in art. 28 of the law on retirement and mili- 
tary pensions and the amount of the sum to be paid them will be 
fixed in proportion of the degree of their infirmities. The parents 



70 ANGARY 

of those who die in the service will be entitled to pensions speci- 
fied in art. 28 of the above mentioned law. The provisions of 
military law on retired officers and men will also be applied on 
disabled crew and others in conformity with art. 27, and the 
parents of those who lose their lives while in the service will be 
entitled, in conformity with art. 36, to a pension. 

Art. 6. In case of necessity the requisitioned merchantmen will 
be turned into and used as warships. 

Art. 7. The price to be given for the requisitioned steamers will 
be determined in accordance with the prescription contained in 
art. 10, and the amount of indemnity to be paid other than 
the one mentioned in art. 8 of the present law for freighting 
steamers as well as other indemnities, such as repairing and 
salvage expenses, will be fixed by a commission composed of four 
experts, two of which to be appointed by the War Office and 
Admiralty, and the two others chosen by the proprietor of the 
steamers or by their attorneys. 

A decision must be given unanimously and, in case of not ar- 
riving at an understanding, a fifth expert sent from the tribunal 
of commerce will join the commission and a proces-verbal drawn 
to that effect will be communicated to the two parties concerned. 
In case of nonacceptance by one of the parties of the estimates 
given in the proces-verMl an application will be made to the 
tribunal competent in the matter. 

Art. 8. Freight indemnities, such as mentioned above, will be 
paid, from the date of their requisition, to the proprietor of the 
means of transport at the following rates : For every boat of 101 
to 300 tons, 5 paras per mile, and 4 paras per mile for every ton 
above 300 tons, for every boat of 301 to 500 tons, 3 paras per ton 
above 500 tons, for every boat of 501 to 1,000 tons and 2 paras 
per ton above 1,000 tons for every boat of more registered tons. 
If the navigation expenses exceed the half of the freight indem- 
nity, surplus together with canal, lighthouse, harbor, dock, and 
buoy duties will be paid by the Government. All steamers under 
100 tons as well as sailing vessels and boats propelled by oars 
will have freight indemnity paid per day. For an indemnity oi 
2y 2 piasters will be paid to all loaded steamers of 500 tons as 
well as boats of every description detained at anchor, steamers or 
boats of more than 500 tons will have 50 paras indemnity per day 
during their detention in a port or harbor. 

Art. 9. If the private contracts concluded between the Govern 
ment and the proprietors of the means of transport do not con- 
tain any special and necessary stipulations, the disposition of 
the present law will at once be applied. 



LAWKENCE'S OPINION 71 

Art. 10. In case the means of transport are damaged, sunk, or 
transformed into warships, as stipulated in art. 6, a commission 
composed of experts, as mentioned in art 7, will be formed to fix a 
sum which the Government will pay in cash as indemnity to the 
proprietors who will give these means of transport over to the 
Government. . The proprietors will also have the option of either 
accepting the sum paid as indemnity and continue to be owners of 
these boats, or take them back after the necessary repairs made 
by the Government to> render them to their former state. But if 
the cost of repairs will exceed half of the value of the boat, the 
proprietors will be obliged to transfer it to the Government, in 
cash, the value of the same fixed by experts, and in case of diffi- 
culties arising in coming to an understanding, to accept a price 
determined by maritime tribunals. 

Art. 11. Indemnities, and repairing and salvage expenses are, in 
conformity with the prescriptions of the present law, to be paid to 
the proprietor of the means of transport, generally in cash money : 
In case of force majeure when the payments are postponed and 
interest of 5% is given to the proprietor of means of transport. 
On accounts of those whose living depends upon these means of 
transport settlement can by no means be postponed and are to be 
settled at once in cash money. 

Art. 12. From the date of application of the present law all 
former ones dealing with the same subject will be abrogated. 

Art. 13. The present law will be applied from the date of July 
21, 1330 (1914) v. s. 

Art. 14. The ministers of war, marine, interior, justice, finances, 
commerce, and agriculture are intrusted with the execution of the 
present law. 
March 13, 1332. 

Mehmed Rechad. 
Mehmed Said, 

Grand Vizir. 
Enver, 

Minister of War. 
Thalatt, 

Minister of Interior. 
Ibrahim, 

Minister of Justice. 
A. Nessimy, 
Minister of Commerce and Agriculture. 

Lawrences opinion. — Lawrence shares Dana's opinion 
that angary " is not a right at all, but an act resorted to 
from necessity, for which apology and compensation must 



72 ANGARY 

be made at the peril of war." Writing in 1909, Lawrence 
says: 

We may imagine how fiercely it might be resented, if we contem- 
plate for a moment what would be the consequences of, say, the 
seizure by the United States Government of all the liners in the 
port of New York in order to carry to its destination an expedi- 
tion against a Central American Republic hastily planned in a 
sudden emergency. Half the civilized world would suffer, and the 
other half would make common cause with it. Even the milder 
manifestations of the power to seize are looked on askance, and 
provoke so much controversy that belligerent states will be un- 
willing to resort to them in future. (Principles of International 
Law, 4th ed., p. 627.) 

United States and Spain, 1902. — Even the United 
States in 1902 recognized the possibility of requisition in 
the treaty with Spain. After exempting citizens and 
subjects from compulsory military service, Article V 
provides : 

Furthermore, their vessels or effects shall not be liable to any 
seizure or detention for any public use without a sufficient com- 
pensation, which, if practicable, shall be agreed upon in advance. 

United States and Turkey, 1830. — The treaty of 1830 
between the United States and Turkey, Article VIII, 
provided : 

Merchant vessels of the two contracting parties shall not be 
forcibly taken for shipment of troops, munitions, and other ob- 
jects of war, if the captains or proprietors of the vessels shall be 
unwilling to freight them. 

German treaties. — The treaty between Germany and 
Guatemala in 1887 is a type of many negotiated in the 
last quarter of the nineteenth century. 

Art. VII. The vessels, cargoes, merchandize, and effects of the 
citizens of one or the other country shall not be subject to any 
embargo nor detention for any military expedition whatsoever, 
nor any public use, without the interested parties, or arbitrators 
named by them, having previously determined a just and sufficient 
indemnification in all cases and for all prejudices, losses, delays, 
and damages occasioned by or resulting from such service. 

The treaty between Germany and Colombia is some- 
what more detailed: 



TREATY PROVISIONS 73 

VII. The people of each of the contracting states shall be 
exempt from extraordinary war contributions, forced loans, mili- 
tary requisitions, and from military and political services of every 
kind, in the territory of the other. Nor may their ships, cargoes, 
goods, and other property be embargoed or retained extrajudi- 
cially for military expeditions or for any other purposes. In case 
such a measure is unavoidable, just indemnity shall be agreed 
upon with them beforehand. Moreover, they shall in all cases, 
as regards their real and personal property, be subjected to no 
other burdens, duties, and imposts than those levied upon the 
natives and the subjects of the most favored nation. 

Treaty provisions in general. — A review of a large 
number of treaty provisions since the eighteenth century 
shows a great variety of provisions in regard to the use 
of foreign vessels in time of war, but in general such use 
is conceded under differing conditions. A few states 
have aimed for a period to put an end to the right of 
angary as in the treaty between France and Russia in 
1786. Some states have treaties to the opposite effect, 
even with France, as that with Spain in 1882 by which 
land transport may be requisitioned after previously 
agreed compensations. There is no uniformity in treaty 
provisions. 

Franco-Prussian War, 1870. — On December 21, and 22, 
1870, the Prussian forces at Rouen, " took forcible posses- 
sion of, and scuttled, 6 British vessels in the River Seine, 
near Duclair (part of Rouen), where they were lying, 
taking in ballast for England." The Prussian officer in 
authority said " he took them as a military requisition." 
This act became the subject of immediate diplomatic ne- 
gotiation. Among the early notes exchanged were the 
following : 

No. 12. 

Mr. Odo Russell to Earl Granville. (Bee. January IS.) 

Versailles, January 8, 1811. 
My Lord : After receiving this morning your lordship's telegram 
of yesterday afternoon, I called on Count Bismark and again talked 

88941 — 28 6 



74 ANGARY 

over the question of the 6 British colliers shot at and sunk by the 
Prussian authorities at Duclair. 

His excellency said that he had not yet received a circumstantial 
account of the transaction, but he found that the law officers held 
that a belligerent had a full right, in self-defense, to the seizure 
of neutral vessels in the rivers or inland waters of the other bellig- 
erent, and that compensation to the owners was due by the van- 
quished power, not by the victors. 

If conquering belligerents admitted the right of foreigners and 
neutrals to compensation for the destruction of their property in 
the invaded state they would open the door to new and inadmis- 
sible principles in warfare. Claims for indemnity were submitted 
to him daily by neutrals holding property in France which he could 
never admit. He valued, however, the friendship and good-will 
of England too highly to accept this interpretation of the law in 
the present case, and preferred to adopt one that would meet the 
wishes of Her Majesty's Government and give full satisfaction to 
the people of, England. 

He deplored the treatment to which the masters and crews of 
the colliers had been subjected, according to the accounts he had 
read in the newspapers, and begged I would assure your lordship, 
with expressions of deep regret, that when the reports from the 
Prussian authorities had been received he would obtain the King's 
permission to pay any just compensation to the owners and suf- 
ferers your lordship might think right to recommend. 

I have, &c, 

Odo Russell. 

Earl Granville. 

No. 14. 

Count Bismarck to Count Bemstorff. (Communicated to Earl 
Granville by Count Bemstorff, February 1) 

[Translation] 

Versailles, January 25, 1811. 
I do myself the honour of transmitting to your excellency, in 
pursuance of my preliminary communication of the 4th, and my 
telegram of the 8th instant, a copy of the report from the 1st 
Army Corps on the sinking of English ships in the Seine, near 
Duclair, the preparation of which has been delayed by the mani- 
fold movements of the corps concerned. Your excellency will find 
therein, with the same satisfaction as myself, that the measure in 
question, however exceptional in its nature, did not overstep the 
bounds of international warlike usages. The report shows that a 



PEUSSO-BEITISH CORRESPONDENCE 75 

pressing danger was at hand, and every other means of averting it 
was wanting ; the case was, therefore, one of necessity, which, even 
in time of peace, may render the employment or destruction of 
foreign property admissible, under reservation of indemnification. 
I take the opportunity of calling to mind that a similar right in 
time of war has become a peculiar institute of law, the jus 
angariae, which so high an authority as Sir Robert Phillimore 
defines thus : That a belligerent power demands and makes use of 
foreign ships, even such as 1 are not in inland waters, but in ports 
and roadsteads within its jurisdiction, and even compels the crews 
to transport troops, ammunition, or implements of warfare. I hope 
the negotiation with the owners, for which you are already 
authorized, will lead to an understanding as to the indemnification 
for the damage ; if not, it would have to be submitted to an arbitra- 
tor's award. In the negotiation also the difference in the state- 
ments of the 1st Army Corps and of the English consul at Dieppe, 
as to the number of English vessels sunk, will be explained. 

I respectfully request your excellency to communicate this de- 
spatch, with its inclosure, to the Secretary of State of Her Brit- 
annic Majesty, and to be so good as to express, at the same time, 
my apology for the delay, as well as my thanks to Her Majesty's 
Government for the just appreciation of the military necessity 
with which Lord Granville has apprehended and treated this 
matter. 

Bismarck. 

Count Bernsdorff. 

(Inclosure.) 

Report of the 1st Army Corps on the sinking of ships off Duclair 

[Translation] 

The 1st Army Corps having received orders to occupy Rouen 
with three Infantry brigades (one was left at Amiens) and to 
secure itself in proper positions in advance on both banks of the 
Seine against an enemy who was known to be numerically stronger 
than the Army Corps, the attention of the general in command was 
the more necessarily directed first of all to the Seine itself, as 
information had been received that French men-of-war had but 
a short time before left the port of Rouen. 

A close examination of the Seine was therefore ordered, and 
soundings taken by engineer officers showed that the channel was 
from 30 to 35 feet deep throughout, and the depth was increased 
from 4 to 10 feet by the tide. 

Several French men-of-war also soon appeared and steamed 
with the rising tide as far as off Duclair; they returned with 



76 ANGAKY 

the ebb to Oandebec, where most of them remained for the night. 
Our patrols, where they showed themselves, were hotly fired upon 
by the men-of-war ; hostile detachments were even disembarked on 
the left bank of the Seine. It is clear that the troops were thereby 
really endangered in their positions and operations. 

It was not only possible for the enemy to flank an advance of 
our troops on the right or left bank by a direct artillery fire, but 
a change from one bank to the other was extraordinarily facili- 
tated for the hostile troops — nay, they might even be disem- 
barked in the rear of ours. 

According to the statement of competent judges, a large wooden 
ship, which was stationed in the Seine with two or three small 
ships, alone held 1,000 troops for landing. 

Another considerable evil was that the men-of-war entirely 
stopped the road to Candebec, as it runs close to the bank at 
the foot of the steep rocky cliffs. 

Finally, the appearance of the men-of-war kept, the inhabitants 
of Rouen in continual excitement, which was the more to be 
avoided, as the quartering of troops, the closing of the manufac- 
tories, etc., already made the temper of the workmen worse from 
day to day. 

Under these circumstances, General von Bentheim ordered 
Lieutenant Colonel von cler Burg, chief of the general staff, to 
have the Seine completely blocked up. Fresh examinations and 
conferences with the first engineer officer, Major Fahland, gave 
the following result : 

It is impossible to block up the channel completely by means 
of the low river ships ; this can only be effected by sinking high- 
built sea ships. The great expense of attaining the end in this 
manner makes it appear desirable to attempt the blocking up in 
another and less costly manner ; for example : 

1. By the formation of batteries which were made near La 
Fontaine. 

2. By torpedoes. 

The first measure proved insufficient, as it was soon ascertained 
that some of the small steamers were armour plated, and the com- 
mander had only field artillery at his disposal ; the second failed 
from the want of the requisite materials at the time. 

Therefore the only possible means of blocking up the channel 
was by the sinking of sea ships. So Lieutenant Colonel von der 
Burg ordered Major Fahland to seize all the sea ships which were 
off Duclair. This measure was necessary, because if a requisition 
had been made for the ships to the mayorality here, probably all 
the ships, timely warned, would have gone to Havre. 



SETTLEMENT OF CLAIMS 77 

All the ships seized immediately hoisted neutral flags, especially 
English. In the urgency of the matter, researches could not then 
oe made how far the neutral flag covers ships also in rivers, and 
lying especially between belligerent parties; the suitable ships 
were pointed out for sinking. 

The work began on the 19th of December ; altogether 11 ships 
were sunk, amongst them 7 English ones. 

It is hardly worth mentioning that the reports of some French 
newspapers, stating that the British crews were brutally treated, 
are quite unfounded. As only three ships were sunk daily, there 
was time enough to warn the crews to save their papers and 
effects, which was done. Besides, an order was handed to the 
csptains in which the value of the ship, according to the captain's 
own statement, was entered. 

Finally, it must also be mentioned that, in order to spare the 
ships as much as possible, the ballast ports only were a little en- 
larged. Therefore, if they have not been tossed about, and dam- 
aged by the ebb and flow in the bed of the Seine, it appears not 
unlikely that after they are raised they may again be fit for use. 

For the general in command. 

Yon Bentheim, 
Lieutenant General and Commander of Division. 

(61 British and Foreign State Papers, pp. 579 et seq.) 

In the settlement of the claims of the British ship- 
owners a liberal forced sale price was allowed. Mr. 
Rothery, of the British admiralty court, said, on April 4, 
1871: 

It seems now to be generally admitted that the German Gov- 
evrnment were entitled, provided that they made full compensa- 
tion to the owners, to take possession of these vessels, and to 
sink them for the purpose of protecting themselves against the 
hostile attacks of French vessels of war ; and, moreover, that in 
the exercise of that right they committed no unnecessary, arbi- 
trary, or offensive acts, although the contrary was at first affirmed. 
(61 British and Foreign State Papers, p. 600.) 

The British Board of Trade made an investigation and 
fixed the amount due the British owners of the vessels at 
£7,073 6s. 5d., which was immediately paid by the German 
Government. 

British regulations, 1913. — Article 494 of the King's 
Regulations and Admiralty Instructions, 1913, provides, 



78 ANGARY 

If any British merchant ship, the nationality of which is un- 
questioned, should be coerced into the conveyance of troops or 
into taking part in other hostile acts, the senior naval officer, 
should there be no diplomatic or consular authority at the place, 
is to remonstrate with the local authorities and take such other 
steps to assure her release or exemption, as the case may demand, 
and as may be in accordance with these regulations. 

This article was drawn before the World War, when the 
practice was drifting away from the right of angary, and 
following the decisions of the British prize courts the 
senior naval officer would now probably hesitate to take 
extreme action without specific instructions. 

Albrechtfs opinion. — Albrecht, writing in 1912, after 
reviewing the practice in regard to requisitions, con- 
cludes that the English theory has been gaining ground 
and that it seems plausible and fair. This theory makes 
neutral goods liable to the same requisitions as belligerent 
goods if they have become permanently identified with 
the belligerent national economy. Neutral property tem- 
porarily within belligerent territory is to be seized only 
in case of special need, and then full indemnity is to be 
paid. Neutral vessels and cargoes are in this category r 
and when seized under urgent necessity the owner is en- 
titled to compensation under the "modern right of an- 
gary." (A. E. Albrecht, Requisitionen von neutralen 
Privateigenthum, 6 Zeitschrift fur Volkerrecht, Sup. I.) 

Forms of angary. — There seems sometimes to have 
been positive destruction for war purposes of neutral 
property by belligerents for which indemnities have been 
paid, as in the case of the British ships sunk in the Seine 
in the Franco-Prussian War; sometimes simply employ- 
ment for war purposes and indemnity has been paid for 
the employment only, of which there are many examples \ 
and sometimes denial by the belligerent to the neutral of 
the use of his own property lest the neutral property fall 
into the hands of the other belligerent or disclose infor- 
mation useful to the other belligerent, as in the case of 
the British merchant vessel Labuan, detained during the 
Civil War by the United States lest it disclose important 



REQUISITION OF DUTCH SHIPS 79 

information. All of these acts have been included under 
the right of angary. The basis of this right seems to be 
the necessity of the belligerent, extending to the control of 
property within his jurisdiction. 

Requisition of Dutch ships, 1918. — Negotiations were 
carried on in 1917 between the Governments of the allied 
powers and the Netherlands Government in regard to the 
use of Dutch merchant vessels by the Allies. A proposed 
agreement of December 24, 1917, for a modus vivendi 
under which Dutch ships should be used in specified man- 
ner was not accepted. This and other propositions led to 
long and frequent inconclusive discussions. A British 
memorandum of April 25, 1918, said, in looking back at 
the course of events: 

Time was going on and, as has already been explained, the lapse 
of more than two months since the basis of agreement was first 
arrived at had made an essential difference in the tonnage situa- 
tion. Nevertheless, the associated governments would, for their 
part, have greatly preferred to come to an arrangement by mutual 
agreement, and it was for that reason that another determined 
effort was made to reach a satisfactory conclusion with the 
Netherlands Government upon the lines that in return for the 
100,000 tons of breadstuffs which the Netherlands Government 
desired, the tonnage which the associated governments would have 
received under the agreement should have been made available at 
once for use either within or without the war zone. This was the 
proposal which, in form, was accepted by the Netherlands Govern- 
ment on the 17th March. (Parliamentary Papers, Misc., No. 11, 
1918.) 

The form embodied in a note to the Netherlands, in 
which the action of the associated governments was made 
known, was as follows: 

(Telegraphic.) 

Mr. Balfour to Sir W. Townley 

Foreign Office, March 21, 1918. 

I request you to make the following communication to the 
Minister for Foreign Affairs: 

" 1. After full consideration, the associated governments have de- 
cided to requisition the services of Dutch ships in their ports in 
exercise of the right of angary. They would have preferred to 



80 ANGARY 

obtain the use of the ships by way of agreement with the Nether- 
lands Government, and, as your Excellency knows, an arrangement 
for this purpose was made between representatives of the Nether- 
lands Government and of the associated governments as long ago 
as the beginning of last January. 

"2. Unfortunately the Netherlands Government for more than 
two months did not see their way to ratify that arrangement. 
They, moreover, had found it impossible to carry out in all its 
terms the modus vivendi which had been arrived at pending the 
ratification of the agreement, explaining that the German Govern- 
ment would not allow them to do so. It seemed, therefore, clear 
to the associated governments that the proposals originally made 
were not adequate to the present situation. Delay had altered 
the circumstances. The condition that Dutch shipping was not to 
be used in the danger zone was no longer acceptable in itself, 
and might at any time have been made still less so by an extension 
of the zone by our enemies. Further, the fate of the modus 
vivendi had shown that in the very difficult position in which the 
Netherlands Government was placed, the execution of the agree- 
ment would probably have been attended with difficulties and de- 
lays still more prejudicial to the interest of the associated 
governments. 

" 3. The associated governments therefore proposed that the 
limitation on the use of Dutch shipping contemplated under the 
original scheme should be abandoned, and that, in its altered form, 
the agreement should come into force immediately. To this the 
Netherlands Government could not assent, except upon terms which 
would have made it practically impossible for the associated gov- 
ernments to make any use of the Dutch shipping. To say that 
shipping shall not be employed for the carriage of war material 
is at this stage of the war equivalent to saying that it shall not be 
used at all. For with respect to the great majority of cargoes it 
is impossible to say that they are not required, directly or in- 
directly, for the purposes of war. 

" 4. For these reasons the associated governments have felt 
compelled to fall back on their unquestionable right to employ 
any shipping found in their ports for the necessities of war. But 
they are very anxious that the exercise of this right should be as 
little burdensome to the shipowners and as little obnoxious to the 
Netherlands Government as it can be made. 

" 5. The associated governments hope that it may be possible to 
arrive at an agreement with the owners as to rates of payment, 
values for insurance, &c, and on these points a further communi- 
cation to the Netherlands Government will be sent very shortly. 
At the end of the war the ships will be returned to their owners, 



BRITISH-DUTCH CORRESPONDENCE 81 

who will, of course, be compensated for any losses caused among 
the ships by enemy action. The associated governments are will- 
ing, further, to offer the owners, on conditions to be mutually 
agreed upon, an option to have any ship which may be so lost 
in the danger zone as it exists at present actually replaced by 
another ship within the shortest possible period after the conclu- 
sion of peace. I need hardly assure your Excellency that all 
facilities in the power of the associated governments will be given 
for the repatriation of the crews if desired, and that all precau- 
tions will be taken to ensure that they be treated with every 
courtesy and consideration. 

" 6. Further, the associated governments hereby give to the 
Netherlands Government an undertaking that Dutch ships which 
may leave a Dutch port after the date of this communication shall 
not be brought into allied services otherwise than in agreement 
with the owners. 

" 7. The associated governments having been informed that, 
unless the stock of food grain now in the Netherlands be replen- 
ished in time, Holland is threatened with a serious shortage dur- 
ing the third quarter o£ this year, will at once place at her dis- 
posal 50,000 tons of wheat (or an equivalent quantity of flour) 
or other breadstuffs in a North American port and 50,000 tons in a 
South American port. It is hoped that the Netherlands; Govern- 
ment will immediately send out such part of the tonnage re- 
maining in Holland as may be necessary to lift this grain. The 
associated governments guarantee that as far as it is in their 
power these ships shall enjoy immunity from delay and detention, 
and receive every facility for bunkering. 

" 8. The United States Government have already intimated 
that the steamship New Amsterdam at present in New York will 
not be utilised by them, and will, under the special arrangement 
covering it, be allowed not only to return at once to Holland but 
to load a cargo of foodstuffs consisting of rice and coffee. This 
cargo will be composed of the original cargoes of the steamship 
Samarinda and the steamship Adonis, which would have been 
allowed to proceed to Holland if the modus Vivendi already re- 
ferred to had come into operation. 

" 9. As regards further supplies of cereals, foodstuffs, raw ma- 
terials, and all other articles, the importation of which is pro- 
vided for in the proposals for the general arrangement, the asso- 
ciated governments are wiping to give Dutch vessels now in Dutch 
ports every facility for their importation into Holland in accord- 
ance with the list and the terms of the general agreement, if the 
Netherlands Government are ready (as the associated govern- 
ments hope they are) to signify their acceptance of its terms 
generally. 



82 ANGARY 

" 10. The associated governments believe that the Dutch ships 
now in their ports do not fully correspond with the tonnage to 
whose services they had hoped to become entitled under the terms 
of the proposed general arrangement, and that the vessels now in, 
or on their way to, Dutch ports will be found to exceed the 
tonnage needed for the imports of the Netherlands and their 
colonies calculated on the basis of the original tonnage proposals 
provisionally agreed by the Dutch delegates. If, contrary to this 
expectation, it should be proved to the satisfaction of the associ- 
ated governments that this is not the case, the latter will be 
ready to make up any deficiency in the tonnage left at Holland's 
disposal on the lines of the various provisions of the general 
arrangement covering the use and distribution of Dutch tonnage 
as soon as the Netherlands Government shall have supplied the 
allied governments with definite figures of the tonnage now in 
or on the way to Dutch ports." (Parliamentary Papers, Misc., 
No. 11 [1918], p. 2.) 

The Netherlands Government objected to the position 
taken by the associated governments, and in a reasoned 
argument said : 

In the first place, I must remark that the Queen's Government, 
as your Excellency knows, in no way agree to the interpretation 
now given to the right of angary, an ancient rule unearthed for 
the occasion and adapted to entirely new conditions in order to 
excuse seizure en masse by a belligerent of the merchant fleet of a 
neutral country. This measure, which only rests on force, is 
unjustifiable, whether one is pleased to give it the name of " requi- 
sitioning of services" or any other label destined to conceal its 
arbitrary character, and if its application be limited or not to the 
duration of the war or mitigated in its details so as to make it 
more supportable. The so-called right of angary is the right of a 
belligerent to appropriate as an exception a neutral ship for a 
strategical end of immediate necessity, as, for example, to close 
the entrance of a seaport so as to hinder the attack of an enemy fleet. 
Application of this right to a fleet en masse is an interpretation 
entirely arbitrary and incidental (" d' 'occasion") . (Ibid. p. 3.) 

Of this communication from the Netherlands Govern- 
ment Mr. Balfour said, on April 25, 1918 : 

It is true that the British note of the 21st March, bases the 
requisitioning of these ships on the right of angary, but it appears 
to make little difference whether the act of requisitioning is treated 
as founded on that right or upon the general right of sovereignty 
over all persons and property within the jurisdiction. 



BEITISH-DUTCH CORRESPONDENCE 83 

It would appear that the Netherlands Government consider the 
right of angary to be an ancient rule, which has fallen into desue- 
tude until it was unearthed by His Majesty's Government as justi- 
fying an arbitrary act on their part. The right is certainly an 
ancient one, and its existence has been recognized, though ad- 
mittedly in some cases with reluctance, by nearly all writers on 
international law, from Grotius downwards. It is sufficient to 
refer to Bluntschli, Masse, Vinnius (ad Peckium), Bonfils, Calvo, 
Halleck, Rivier, Heffter (especially note by Geffcken in the 
fourth French edition), Hall, Phillimore, Westlake, and Op- 
penheim. But if it is suggested that the right has fallen 
into disuse and is obsolete, it is fair (without quoting ex- 
tensively from the many modern writers on international law 
who recognize the right as still existing) to point out that it was 
asserted by the German Government and acquiesced in by His 
Majesty's Government in 1871 ; that it is especially mentioned in 
the United States Naval War Code of 1900; and that during the 
discussions at the Naval War College in 1903, which resulted in 
the withdrawal of the Code, it was not suggested that the article 
in question required any modification. Further, the right was 
fully recognized during the present war, before any cases had 
arisen of the requisitioning of neutral ships which were not the 
subject of prize court proceedings, by the judicial committee of the 
privy council in the well-known case of the Zamora. (Ibid. p. 9.) 

and further in the same memorandum Mr. Balfour says : 

It is a commonplace that the rights of a sovereign State extend 
over all property within its jurisdiction, irrespective of ownership, 
and neutral property within belligerent jurisdiction is, in the ab- 
sence of special treaty stipulations, as liable to requisition in case 
of emergency as the property of subjects. If demonstration of this 
fact were required, it would be afforded by the circumstance that 
it is not an uncommon provision in commercial treaties that the 
property of the subjects of the contracting parties shall be exempt 
from military requisition in the territory of the other. Vessels 
calling at a foreign port are, in the absence of special treaty pro- 
visions, fully subject to the local jurisdiction. A striking example 
of this is the practice under which such a vessel can be arrested 
by reason of legal proceedings in the courts of the country which 
she is visiting, and detained there by order of those courts until 
the proceedings are finished, or she obtains her release on bail. 
This being so, it is not surprising that a practice should have 
grown up of exercising this right in the particular case where the 
State in question has urgent need of neutral property such as 
shipping within its jurisdiction, and the fact that the exercise of 



84 ANGAKY 

this right has received a particular name should not obscure the 
truth that it is a legal exercise of the right of a sovereign State, 
and not an act by a belligerent based on no principle of law, and 
for which the only justification is to be found in usage. (Ibid. 
P- 11.) 

The taking over by the United States of Dutch ships. — 
The United States had been concerned in the negotiations 
with the Netherlands through representatives of the War 
Trade Board. The United States took over the Dutch 
ships under a presidential proclamation of March 20, 
1918, and took over possession of tackle, etc., by an Ex- 
ecutive order of March 28, 1918. 

By the President of the United States of America 

a proclamation 

Whereas the law and practice of nations accords to a belligerent 
power the right in times of military exigency and for purposes 
essential to the prosecution of war to take over and utilize neutral 
vessels lying within its jurisdiction ; 

And whereas the act of Congress of June 15, 1917, entitled "An 
act making appropriations to supply urgent deficiencies in appro- 
priations for the Military and Naval Establishments on account of 
war expenses for the fiscal year ending June thirtieth, nineteen 
hundred and seventeen, and for the other purposes," confers upon 
the President power to take over the possession of any vessel 
within the jurisdiction of the United States for use or operation 
by the United States : 

Now therefore, I, Woodrow Wilson, President of the United 
States of America, in accordance with international law and prac- 
tice, and by virtue of the act of Congress aforesaid, and as Com- 
mander in Chief of the Army and Navy of the United States, do 
hereby find and proclaim that the imperative military needs of the 
United States require the immediate utilization of vessels of 
Netherlands registry, now lying within the territorial waters of 
the United States ; and I do therefore authorize and empower the 
Secretary of the Navy to take over on behalf of the United States 
the possession of and to employ all such vessels of Netherlands 
registry as may be necessary for essential purposes connected with 
the prosecution of the war against the Imperial German Govern- 
ment. The vessels shall be manned, equipped, and operated by 
the Navy Department and the United States Shipping Board, as 
may be deemed expedient ; and the United States Shipping Board 



BRITISH-AMERICAN ATTITUDE 85 

shall make to the owners thereof full compensation, in accordance 
with the principles of international law. 

In testimony whereof. I have hereunto set my hand and caused 
the seal of the United States to be affixed. 

Done in the District of Columbia, this twentieth day of March, 
in the year of our Lord one thousand nine hundred and eighteen, 
and of the independence of the United States of America the one 
hundred and forty-second. 

Woodrow Wilson. 
By the President : 
Robeet Lansing, 

Secretary of State. 

EXECUTIVE ORDER. 

In pursuance of the authority conferred upon the President of 
the United States by the act approved June 15, 1917, entitled "An 
act making appropriations to supply urgent deficiencies for the 
fiscal year ending June 30, 1917, and for other purposes," the 
Secretary of the Navy is hereby authorized and directed to take 
over, on behalf of the United States, possession of all tackle, 
apparel, furniture, and equipment, and all stores, including 
bunker fuel, aboard each of the vessels of Netherlands registry now 
lying within the territorial jurisdiction of the United States, 
possession of which was taken in accordance with the proclama- 
tion of the President of the United States promulgated March 20, 
1918; and in every instance in which such possession has hereto- 
fore been taken of such tackle, apparel, furniture, equipment, and 
stores, such taking is hereby adopted and made of the same force 
and effect as if it had been made subsequent to the signing of this 
Executive order. 

The United States Shipping Board shall make to the owners of 
any tackle, apparel, furniture, equipment, and stores taken under 
the authority of this order full compensation in accordance with 
the principles of international law. 

Woodrow Wilson. 

The White House, March 28, 1918. 

The Netherlands Government published on March, 30. 
1918. a statement showing its attitude upon the taking 
over of the vessels by the United States. 

The Dutch Government and the whole Dutch people have taken 
note with painful surprise of the proclamation and statement of 
the President of the United States of March 20 relative to the 
seizure of part of the Dutch mercantile marine. The seizure 



86 ANGARY 

en masse of a neutral mercantile fleet, although merely for the 
duration of the war, is an act which is indefensible from the 
point of view of international law and apart from legal consider- 
ations is unjustifiable when taken against a friendly nation. Fur- 
thermore the manner in which the act of violence is defended in 
the President's statement does not contribute to making it any 
the less grievous, for the defense has clearly been set up under 
the influence of an entirely wrong conception of the facts. 

The manner in which the Dutch mercantile fleet has been 
treated for months past in the United States, the interminable 
difficulties placed in the way of our vessels' departure from Ameri- 
can ports, the continually repeated refusal of bunker coal, the 
enforced unloading of cargoes already purchased — all of this may 
not be in conflict with the rights of the United States, with the 
exception of one case, that of the Zeeland/ia, which entered an 
American port with her own bunker coal and has been detained 
there illegally ever since, but it was nevertheless in conflict with 
the traditional friendship between the two countries. This, how- 
ever, is merely said in passing. On this point, however, the state- 
ment is silent. 

According to the presidential statement Holland is said not to 
have fulfilled entirely, because of German pressure, the provisional 
agreement which has been proposed in order that, pending a defi- 
nite agreement relative to tonnage and the rationing of our coun- 
try, our vessels lying in American ports should no longer lie there 
idle but be given an opportunity of making a voyage of 90 days 
at the most. This is absolutely incorrect, as is the assertion that 
Germany is said to have threatened to sink the two vessels which 
were to leave here in return for the two vessels leaving for Hol- 
land with America's approval and that Germany made more and 
more serious threats in order to prevent compliance with the 
modus vivendi as well as the conclusion of a permanent peace. 
(Staats Courant, March 30, 1918, translated in Official Bulletin, 
U. S. April 13, 1918, p. 2.) 

To this the United States said : 

The Netherlands Government have issued a statement relative 
to the recent action of the Government of the United States in 
putting into its service for the period of the present war emergency 
certain privately owned vessels of Netherlands registry lying 
within the territorial jurisdiction of the United States. While this 
action is referred to as being indefensible from the standpoint of 
international law the statement of the Netherlands Government 
does not argue the question of legality. Nor is this Government 
disposed to do so. The practice of nations and the opinions of 



conclusion 87 

jurists on the right of a belligerent to utilize all vessels which 
come voluntarily and unconditionally within its jurisdiction are 
sufficiently well known to render citation of precedent and of 
authority unnecessary. (Official Bulletin, U. S., April 13, 1915, 
P. 1.) • 

Action of other states. — The action of other states in 
Europe and in South America in taking over before and 
during the World War German merchant vessels while 
called by Germany " a strange violation of right " was 
approved in practice. 

General. — Early and late practice has shown resort to 
the exercise of the right of angary. Treaties have im- 
plied the right to take over vessels upon payment of 
indemnity. Proclamations and diplomatic papers have 
given the right full recognition as the French Minister of 
Marine declared on November 18, 1917, angary is laAvful 
" in presence of imperative and urgent need for the na- 
tional defense and in absence of contrary treaty stipu- 
lations." 

conclusion 

In case of urgent need and " in absence of contrary 
treaty stipulation" a belligerent state may exercise the 
right of angary. 



Situation IV 

AIRCRAFT IN NEUTRAL PORTS 

States X and Y are at war. Other states are neutral. 
An aircraft carrier of State X enters a port of State Z 
with 10 aircraft on board. 

A cruiser of State X has on board a disabled aircraft 
which it desires to transfer to the carrier in exchange for 
an aircraft in good condition, and to take from the air- 
craft carrier aircraft fuel and certain parts for repairing 
disabled aircraft. 

May State Z legally decline to permit within its juris- 
diction the transfer of the aircraft or the supply of air- 
craft fuel or parts? 

SOLUTION 

State Z may legally decline to permit within its juris- 
diction the transfer of aircraft or of aircraft fuel or 
parts. 

NOTES 

Development of regulations. — The development of reg- 
ulations relating to aerial warfare has naturally followed 
the development of instruments of aerial warfare. At 
different times it has been vigorously maintained that 
all aerial warfare should be prohibited as a method of 
placing a limitation on war. Some of the supporters of 
this argument have contended that an international agree- 
ment to confine warfare to land and sea contests and not 
to extend war to the air would limit armament and the 
range of hostilities, and that such agreement prior to the 
extensive preparation for aerial warfare would secure 
the status quo, avoiding competition in air armament. 
Some states, however, have been confident that the more 
economical and effective defense for their territory is by 

88941—28 7 89 



90 AIRCRAFT IHT NEUTRAL PORTS 

aircraft, rather than other means. States have accord- 
ingly taken advantage of the progress in aviation for 
military purposes. The call for the peace conference at 
The Hague in 1899 provided in the first four suggested 
topics for limitations on aerial and other war. 

Discharge of projectiles from balloons, Hague regula- 
tions, — The First Hague Conference, in 1899, made the 
following declaration. 

The contracting powers agree to prohibit, for a term of five 
years, the discharge of projectiles and explosives from balloons 
or by other new methods of similar nature. 

This same prohibition was renewed at the Second 
Hague Conference, in 1907, except that the words " five 
years " were changed to " for a period extending to the 
close of the Third Peace Conference." 

The essential proposition relating to principle was the 
prohibition of " the discharge of projectiles and explo- 
sives from balloons or by other new methods of similar 
nature." 

Attitude toward declaration of 1899. — The declaration 
of 1899 prohibiting the discharge of projectiles or explo- 
sives from aircraft for a period of five years was ratified 
by most of the 26 States participating in The Hague 
Conference of 1899. Great Britain did not ratify this 
declaration before 1907. Turkey signed but did not 
ratify. It expired by limitation in 1904 and was not re- 
newed, though the subject was revived at the conference 
of 1907. 

Hague discussion, 1907. — Some of the discussion at The 
Hague has been considered in the Naval War College In- 
ternational Law Situations, 1912, pages 56-92. These 
discussions of 1912 were rather with reference to specific 
situations and not with reference to the general subject. 

At The Hague conference of 1907 the Belgian delegate 
proposed the renewal of the declaration of 1899 to the 
effect that — 



HAGUE DISCUSSION", 19 7 91 

The contracting powers agree to prohibit, for a term of five years, 
the discharge of projectiles and explosives from balloons or by 
other new methods of a similar nature. 

The Austro-Hungarian delegates, supporting the Bel- 
gian proposition, said : 

Nous pensons que le resultat tactique que Ton peut obtenir a 
l'aide de ces engins n'est point suffisant pour justifier la perte de 
vies, le dommage materiel ainsi que les depenses causes par leur 
emploi. 

II est vrai que ni les belligerants, ni les neutres, ne seront a 
meme de defendre leut droit de souverainete sur les zones atmos- 
pheriques qui leur appartiennent et leurs frontieres aeriennes, 
d'une maniere aussi efficace que leurs populations et leurs biens. 

Mais le nouveau moyen de guerre mentionne dans la Declara- 
tion, n'est pa® indispensaMe; et cette circonstance nous permet 
d'esperer avec certitude que 1'espirt d'humanite et de paix, qui 
plane en pensee, dominante sur cette assemblee, dont elle inspire 
les decisions — esprit auquel nous avons meme deja sacrifie mainte 
exigence militaire^ — se manifestera aussi ici, par l'adoption pour 
une serie d'annees limitee, de la mesure, que preconise la proposi- 
tion beige. 

Nous ne desirous nullement entraver les progres de la science, 
ma is ne voudrions pas en encourager une application qui, sans 
offrir d'avantage tactique suffisant, augmenterait encore les 
cruautes de la guerre. (Deuxieme Conference Internationale de 
la Paix, Tome III, p. 151.) 

The Russian delegate proposed to make a permanent 
agreement as to the prohibition of the discharge of pro- 
jectiles from balloons against undefended places. The 
Italian delegation introduced an amendment to the same 
effect. This part of the regulation was embodied in ar- 
ticle 25 of the Laws and Customs of War on* Land, pro- 
hibiting the attack or bombardment by any means what- 
ever of undefended places. 

The Italian delegation also proposed to distinguish 
among aircraft, suggesting the following: 

II est interdit de lancer des projectiles et des explosifs du haut 
de ballons qui ne sont pas dirigeables et montes par un equipage 
militaire. 



92 AIRCEAPT LN" NEUTRAL PORTS 

General de Robilant, in a somewhat long speech, sup- 
ported the Italian propositions, saying among other 
things that: 

Par la Declaration de 1899 on interdisait pour un temps de- 
termine" l'usage d'une arme nouvelle qu'on designat vaguement, vu 
qu'il etait question de ballons ou d'autres modes analogues nou- 
veaux. Cette Declaration evidemment ne pouvait avoir qu'un 
caractere provisoire, et representait exactement l'incertitude qui 
regnait alors sur la dirigeabilite des ballons et sur la possibility 
de l'obtenir. 

Depuis lors la situation a change, une grande puissance, dont 
I'industrie a toujours et£ a la tete de tous les progres, a resolu le 
probleme qui hantait depuis longtemps les hommes de science, et 
grace aux moteurs puissants et lagers que lui offrent les nouvelles 
applications de la mecanique et de la metallurgie, elle a trouve" 
moyen de construire un ballon qui §volue aussi aisement dans les 
airs qu'un navire sur la mer. 

Les autres puissances la suivent de tr6s pr^s leurs ingenieurs 
s'acliarnent dans un labeur ininterrompu a trouver des solutions 
peut-etre meilleures que celles qui existent deja, et il est probable 
qu'ils y parviendront. Le progres n'a point de limites, et ce qui 
nous etonne et nous parait extraordinaire aujourd'hui, nous 
semb.era naturel et meme banal demain. 

Dans ces conditions, du moment ou il n'a pas §te possible d'in- 
terdiie d'une fagon absolue, quoique pour un temps limite, l'usage 
des ballons pour certains actes de guerre, mieux vaut le restrein- 
dre et le discipliner pour toujours. 

Tout progres scientifique a toujours trouvg son application a 
1'art militaire; des qu'on a appris a dinger et a conduire des 
navires, on s'est empresse de les armer pour 1'attaque et la 
defense; des wagons blindes et amies de canons ont ete vus 
parcourant les cbemins de fer dans certaines guerres recentes; de- 
main on aura des automobiles cuirasses armes de canons a tir 
rapide, si la chose n'est pas deja faite et il deviendra de plus en 
plus difficile, comme on l'a vu, d'interdire aux ballons d'etre 
arm£s a leur tour et de se servir de leurs armes. ( Ibid. p. 155. ) 

Of the 35 delegations voting, 21 votes were favora- 
able, 8 were opposed, and 6 abstained from voting. 

The principles of the Italian proposals were embodied 
in other conventions and the declaration of 1899 was 
reaffirmed, though the states have been slow to ratify it, 
but have devoted themselves to the perfecting of their 



RESTRICTIONS ON" USE OF AIRCRAFT 93 

aircraft and training a military personnel to use them 
efficiently. 

General restrictions. — The Hague Laws and Customs of 
War on Land contain in article 22 the statement that 
"The right of belligerents to adopt means of injuring 
the enemy is not unlimited." In 1899, the main argu- 
ment against the use of aircraft was that their move- 
ments could not be controlled with sufficient certainty so 
that the probability of injury to the enemy would be 
wholly out of proportion to the suffering that might be 
caused. Needless suffering was so far as possible to be 
restricted. 

Attitude toward declaration of 1907. — The attitude 
prior to the World War toward the declaration of 1907 
prohibiting the discharge of projectiles and explosives 
from aircraft may be seen in the reluctance of states to 
ratify this declaration. Only 15 of the 44 states ratified. 
Of the European states Austria-Hungary and Great 
Britain, with some of the smaller states, ratified. Ger- 
many, France, Italy, Russia, and Spain were among the 
European states that did not ratify. The United States 
ratified the declaration. Japan did not ratify. This situ- 
ation showed that the leading states and many of the 
smaller states were for the most part disinclined to sign 
a declaration limiting their right to the free use of air- 
craft within the laws of war. 

Other restrictions on use of aircraft.— Beside the 
declaration prohibiting the discharge of projectiles and 
explosives from balloons, there are clauses in other Hague 
agreements which restrict aerial warfare. An amend- 
ment to article 25 of the Laws and Customs of War on 
Land was drawn with the express purpose of applying to 
aircraft, though it is doubtful whether it accomplished 
this object. It is as follows, the words in italics being 
introduced in 1907 as amending the clause of 1899 : 

The attack or bombardment ~by any means whatever of towns, 
villages, or buildings which are not defended is forbidden. 



94 AIRCRAFT IK NEUTRAL PORTS 

In the use of aircraft from ships it is also reasonable 
that the rules in regard to naval bombardment should, so 
far as possible, apply. The restriction in all cases pro- 
hibits attack on undefended and unfortified places. Pre- 
sumably provision, should be made for marking by signs 
visible from above hospitals and public edifices, as in case 
of naval bombardment. 

The prohibition in regard to projectiles discharging 
asphyxiating or deleterious gases would apply for most 
states, though the United States did not ratify this decla- 
ration of 1899. 

The same may be said of the declaration prohibiting 
expanding bullets. 

Institute of International Law, 1911. — At Madrid in 
1.911, the Institute of International Law, after long discus- 
sion, voted upon the status of aircraft in time of peace 
and in time of war. The regulation voted for the time 
of war was, 

La guerre aerienne est permise, mais a la condition de ne pas 
presenter pour les personnes ou les proprietes de la population 
pacifique de plus grands dangers que la guerre terrestre ou mari- 
time. (24 Annuaire de l'lnstitut de Droit International, p. 346.) 

The discussion at Madrid showed a strong sentiment in 
favor of absolute prohibition of aerial war over land and 
sea, while at the same time it recognized such a prohibi- 
tion would be impossible owing to the progress in aerial 
navigation. 

The British members were generally favorable to limi- 
tation, and Professor Holland advocated complete prohi- 
bition of aerial warfare. Professor Westlake's proposi- 
tion prohibiting the use of aircraft in time of war except 
for observation purposes was supported by many mem- 
bers of the institute. 

After the discussion had been carried on for a long time 

M. Ed. Eolin declare qu'il admet le principe de la " guerre 
aerienne," conformement a l'opinion defendue par M. le Rapporteur 
et entre autres par MM. Politis et Errera. Sans doute l'lnstitut 
doit rendre liommage aux considerations humanitaires elevees dont 



INSTITUTE OF INTERNATIONAL LAW 95 

s'inspirent MM. Westlake, Alb. Rolin et de Labra; mais l'lnstitut 
ne doit pas oublier qu'il est une assemblee de jurisconsultes ; il doit 
done examiner la question qui lui est soumise a un point de vue 
juridique. Or, le principe essentiel des regies de la guerre est 
que toute cruaute inutile est interdite. Si Ton veut proscrire 
l'emploi des aeronefs comme moyen de guerre, il faut demontrer 
au prealable que les aeronefs sont des engins inutilement cruels; 
& defaut de cette demonstration, il faut admettre que la guerre 
aerienne est licite. 

M. le Rapporteur s'associant aux observations de M. Ed. Rolin 
fait valoir que la guerre aerienne est infiniment moins aveugle 
que la guerre maritime a certains points de vue : or, l'lnstitut vient 
d'admettre 1'emploi des mines sous-marines ; s'il proscrit celui des 
aeronefs, on ne manquera pas de considerer cette decision comme 
illogique. (Ibid. p. 341.) 

Several propositions were put to vote. The amendment 
of Professor Holland, "Tout acte d'hostilite, y compris 
les actes d'observation, d'exploration ou de communica- 
tion de la part d'un belligerant, par le moyen d'aeronefs, 
sont interdits" (ibid. p. 343), was rejected by a vote of IT 
to 5. 

The proposition of Messrs. Westlake, Alberic Rolin, 
and Fiore, " Les actes de guerre, sauf ceux d'exploration, 
d'observation, de communication, sont interdits aux aero- 
nefs " was rejected by a vote of 15 to 9. 

Professor von Bar offered a somewhat detailed regu- 
lation. This was as follows : 

Article 1. En general il est interdit de se servir des aerostats, 
ballons ou aeroplanes comme moyens de destruction ou de combat. 

Art. 2. Toutefois: 

(a) Les aerostats, ballons ou aeroplanes militaires ennemis, si 
Ton tire sur eux (par des canons places a terre ou a bord d'un 
vaisseau) peuvent se defendre. 

(&) Les combats en l'air sont permis : 

(1) S'il y a combat naval et que les aerostats, ballons ou 
aeroplanes ne sont eloignes que de vingt kilometres du lieu du 
combat. 

(2) Dans les mers territoriales cles belligerants dans une zone 
de blocus. 

(3) Dans les spheres aeriennes enveloppant les territoires des 
belligerants. 



96 AIRCRAFT IN" NEUTRAL PORTS 

Professor von Bar's proposition was divided for the 
purpose of vote, and some parts were approved while 
other parts^were rejected. When the proposition as a 
whole came before the institute, it was rejected by a vote 
of 13 to 10. 

The regulation was finally approved by the institute to 
the effect that — 

Aerial warfare is permitted, but on condition that it shall not 
involve for peaceful persons and property greater danger than 
land or maritime warfare. 

There were 14 votes for and 7 votes against this regu- 
lation. 

Attitude of the I liter parliamentary Union. — The sub- 
ject of aerial warfare was particularly brought to, the at- 
tention of the Interparliamentary Union in 1912 through 
a proposition of M. Beernaert of Belgium, who had been 
a member of the Hague Conferences and was familiar 
with the course of discussion. He proposed that — 

La XVIF Conference interparlementaire invite le Conseil a 
faire instituer une Commission de sept membres, chargee d'etudier 
les questions relatives a l'emploi de la navigation aerienne en 
temps de guerre au point de vue militaire, et notamment : 

I. D'examiner: 

A) S'il y a lieu de provoquer l'interdiction conventionnelle de 
l'emploi des appareils de navigation aerienne connus ou a inventer 
encore ; 

B) Si, dans tons les cas, semblable emploi ne devrait pas etre 
exclusivement reserve aux Etats, la course aerienne devant etre 
interdite au meme titre que la course maritime ; 

C) Si, dans l'hypothese ou l'emploi comme instrument de combat 
serait prohibe, il y aurait lieu, dans des buts d'utilite militaire, 
d'autoriser des operations de verification, d'investigation ou de 
controle ; de determiner dans ce cas les consequences de semblable 
emploi pour les appareils y affectgs, tant au point de vue de leur 
propre defense et d'hostilite eventuelle entre eux, que pour la pro- 
tection des regions terrestres ou maritimes ainsi exposees ; 

II. D'etudier les consequences budgetaires d'un emploi des ap- 
pareils de navigation aerienne soit comme instruments de combat, 
soit comme moyens de reconnaissance. (Compte Rendu de la 
XVIP Conference, 1912, p. 16.) 



IN'TERPAELIAMEN'TAEY UNION" 97 

In a report after reviewing the progress of regulation 
of aerial navigation and the restriction upon aerial war- 
fare, M. Beernaert said : 

Sans meconnaitre le fondement de ces observations, quelques-uns 
estiment qn'une interdiction absolue n'aurait gu§re de chance 
d'§tre admise et qu'en renongant a. faire des ballons un engin de 
guerre, il conviendrait de tenir compte de precedents deja secu- 
laires et de continuer a en autoriser l'emploi en vue de fournir aux 
armees d'utiles renseignements sur les forces et les mouvements 
de leurs adversaires, 

Tel fut l'avis exprime a Madrid par MM. de Bar, Meurer, A. 
Rolin, Holland, Westlake, etc., et deja M. L. Bourgeois avait 
d£fendu le meme sentiment dans son discours d'overture de la 
session de Paris de l'lnstitut de droit international. Pascal Fiore 
y a adhere. 

II faut reconnaitre qu'une telle distinction, louable en elle- 
meme, entrainerait certaines difficultgs. Les ballons d'une armee 
se trouveraient presque aussitot en presence de ballons de l'ad- 
versaire, et des lors quel serait leur r61e? Interdirait-on aux uns 
et aux autres tout acte d'hostilite" r^ciproque et serait-il d^fendu 
de tirer sur eux de terre, en leur attribuant ainsi une sorte 
d'immunite assez difficile a expliquer? Ou se bornerait-on a ne 
leur permettre qu'un tir horizontal et l'emploi de balles telles 
qu'avant de tomber sur le sol, elles devraient avoir perdu toute 
efficacite? 

Cette derniere condition semblerait, dans tons les cas, deja com- 
mandee par les conventions en vigueur au sujet des lois de la 
guerre. II est, en effet, interdit d'occasionner aucun dommage 
aux non-belligerants, et les combattants doivent menager absolu- 
ment, en mer, les vaisseaux neutres, et a terre, une serie d'establis- 
sements et d'institutions d'interet public general. II fraudrait done 
qu'au moins dans ces limites les aviateurs fussent maitres de leur 
tir, ce qui, pensons-nous, n'est pas encore le cas. 

line autre question d'ordre plutot subsidiaire meriterait encore 
de fixer l'attention de l'Union parlementaire. 

S'il faut s'incliner devant les progres de la science, meme 
lorsqu'ils sont meurtriers, si la guerre des airs pouvait etre con- 
sidered comme un mal inevitable, ne faudrait-il pas au moins que 
sous toutes leurs formes, avions et dirigeables, fissent l'objet d'un 
monopole de l'Etat? 

II y a longtemps que nous poursuivons rinterdiction de la 
course en mer et, sans doute, on serait d'autant plus d'accord pour 
la proclamer dans le domaine de Fair, que Ton n'apergoit guere ni 
les profits qu'on en pourrait tirer, ni les conditions techniques dans 
lesquelles elle pourrait s'exercer. 



98 AIRCRAFT IN" NEUTRAL PORTS 

Mais, & noire sens, cela ne suffirait pas. Nous estimons que de 
tels moyens de nuire, et a 1'egard desquels la surveillance et la 
repression serait si difliciles, ne pourraient etre laisses a la dis- 
position de particuliers, si severe que put etre la reglementation 
a leur imposer. (Ibid. p. 129.) 

In the course of consideration of the report of M. Beer- 
naert much discussion was stirred up by the speech of 
Baron d'Estournelles de Constant, who was known as a 
strong friend of peace and a warm supporter of the de- 
velopment of aviation. The part of his speech to which 
special attention was directed was as follows : 

Oui, ii est odieux, il est revoltant de penser que la premiere 
action d'une admirable creation comme celle de l'aviation per- 
mettant a l'homme de s'elever dans le ciel, serait de se servir 
de l'aeroplane pour tuer l'homme, pour verser le sang, pour com- 
mettre des meurtres. Et je suis d'accord avec vous. Ne croyez 
pas que je sois devenu a mon tour inhumain, pour penser que 
c'est une espece de profanation de l'aviation que de la faire servir 
a la destruction humaine. 

Nous sommes done d'accord, c'est entendu. Mais jusqu'au jour 
oil vous aurez applique une regie qui puisse s'etendre non pas 
seulement a l'aviation, mais a tous les autres moyens de destruc- 
tion, ou vous aurez organise votre defense national dans tous les 
pays, de telle sorte que ce ne soit pas seulement l'aviation qui soit 
frappee, je maintiendrai mon opinion. Si vous voulez frapper 
comme creation du genie humain l'aviation, si vous voulez frapper 
cette application que vous considerez comme funeste, je vous le 
demande, pourquoi est-ce que vous ne frappez pas aussi, pour- 
quoi n'interdisez-vous pas egalement toutes les autres applica- 
tions qui sont, apres tout, aussi funestes, aussi detestables? Pour- 
quoi est-ce que vous n'interdisez pas l'usage des explosifs, les 
applications de la science chimique? Pourquoi est-ce que vous 
n'interdisez pas les torpilles, les mines, les torpilleurs, les sous- 
marins, les submersibles? Pourquoi est-ce que vous n'interdisez 
pas meme les automobiles car il y a chez nous, comme dans tous 
les grands Etats militaires, il y en a en Allemagne et dans 
d'autres Etats, les automobiles militaires cuirasses; il y a tout 
ce qu'on pent imaginer de plus nefaste dans cet ordre d'idees? 
Pourquoi done ne les interdisez-vous pas aussi? Pourquoi n'in- 
terdisez-vous pas rinnocente bicyclette qui peut servir, apres tout, 
au meurtre? Pourquoi n'interdisez-vous pas la telegraphie sans 
fil qui pent, bien plus criminellement encore qu'un aeroplane, par 
1'ordre d'un homme, par l'ordre d'un chef qui pent se tromper, qui 



DEVELOPMENT OF AIRCRAFT 99 

peut abuser de son pouvoir, determiner au loin un massacre? 
Pourquoi done? Oil est la logique? Pourquoi n'interdisez-vous 
pas avec le telegraphie sans fil, les communications par ces ondes 
inconnaissables et qui se developpent tous le jours et qui permet- 
tent de transmettre non pas seulement le son, non pas seulement 
la lumiere, mais la force elle-meme qui pourrait determiner des 
explosions a distance, faire sauter un cuirasse, une forteresse. 
Tout cela vous les tolerez, sauf l'aviation. Je dis que vous com- 
mettez une grande faute. (Ibid. p. 261.) 

The position of M. Beernaert was maintained by a very 
large vote, and the position of M. d'Estournelles de Con- 
stant received comparatively few votes. 

A vote was also passed looking to the renewal of the 
convention prohibiting the discharge of projectiles from 
aircraft. 

Development of aircraft. — While balloons were used in 
the eighteenth century, the development of aerial naviga- 
tion has been particularly rapid since 1907. Not all 
states have developed along the same lines, though of 
course the progress in one state has not been overlooked 
by others. Germany paid special attention to the perfect- 
ing of balloons (dirigibles) which carry heavy burden 
and sustain a long flight. France emphasized flight by 
heavier-than-air machines. 

As aircraft have developed, new uses have been devised. 
They have been found particularly useful in some states 
for locating mines and submarines. With the introduc- 
tion of radio, the use of aircraft for observation purposes 
has been much extended. The increasing range of flight 
and speed has made it possible to report the movements 
of troops on land and of ships at sea even when at a great 
distance. 

The actual firing upon ships and upon troops has be- 
come fairly common. Flights to bridges, depots of sup- 
plies, remote towns, etc., have shown the possibilities of 
the use of aircraft. 

It is now clearly established, in spite of earlier opposi- 
tion, that those using aircraft for the purpose of making 
observations are not to be treated as spies, but if captured 



100 AIRCRAFT IN" NEUTRAL PORTS 

can only be treated as prisoners of war. This position is 
the proper one, as there is no deceit involved in this 
service, and the penalty in case of spying is based on the 
clandestine nature of the service. 

The use of aircraft to disperse troops, as reported in 
the Turco-Italian War in 1911, was very successful. 
Upon troops at that time unaccustomed to such instru- 
ments of war the effect was terrifying before any pro- 
jectiles were discharged. After explosives were dropped, 
many sought flight at once on the reappearance of air- 
craft. 

Even States which had signed the declaration prohibit- 
ing till the close of the proposed 1915 Third Hague Con- 
ference the discharge of projectiles from aircraft were 
busy perfecting aircraft, usually under the supervision 
of military authorities. The World War, which demon- 
strated the great utility of aircraft, made prohibition 
improbable. On the other hand, since 1918 great progress 
has been made in the development of this arm of the 
military service in many countries. 

Internment in World War. — During the World War 
for the first time the question of aircraft in relation to 
neutral jurisdiction became one of great practical im- 
portance. While practice was not, at first, in every in- 
stance uniform, gradually it came to be recognized that 
belligerent aircraft had no right to enter neutral juris- 
diction. Some of the neutral states for a time questioned 
the necessity of denying entry to aircraft, and considered 
permitting entry on terms analagous to those applied to 
maritime vessels of war. Switzerland and the Nether- 
lands, from their geographical position as neutral islands 
surrounded by belligerents, had to face the problem in 
more varied manifestations. Both states maintained the 
right to use necessary force to prevent entrance of bel- 
ligerent aircraft or even to intern aircraft entering under 
force majeure. Disabled belligerent aircraft, aircraft 
trying to escape from the enemy, aircraft lost in fog or 



ITALIAN DECREE, 1914 101 

storm, were with their personnel forced to land and in- 
terned by neutral states. Early in the war there was 
some uncertainty in regard to hydroplanes in Norway, 
and later Denmark permitted some German deserters to 
remain after entering Danish jurisdiction in a stolen air- 
craft. The Netherlands interned American aircraft 
alighting within Dutch jurisdiction after a battle over 
the high sea with Germans. The Swiss authorities simi- 
larly interned American fliers when returning from an 
observation flight and forced by motor trouble to land 
within Swiss jurisdiction. There were many cases in 
which the crews were interned when the aircraft were 
destroyed either intentionally or by accident. When air- 
craft personnel was rescued on the high seas and brought 
within neutral jurisdiction, the practice was usually to 
release them. 

Italian decree, 191.!^. — While Italy w T as still neutral a 
royal decree was issued September 3, 1914 : 

Article 1. It is forbidden for any apparatus or means of aerial 
locomotion, such as dirigibles, aeroplanes, hydroplanes, balloons, 
flying kites, or captive balloons,^ etc., to fly or ascend over any 
points of territory of the state or colonies or of the territorial seas, 
except for those established by military authorities and for other 
aeronautics that are authorized from time to time by the ministers 
of war and navy. No permission will be granted to any foreigners. 

Art. 2. The surveillance of the territory of the state and terri- 
torial seas is entrusted to military and naval authorities, to the 
royal revenue guards, to the coast guards, to the police, and to the 
political and municipal authorities. Appropriate directions and 
instructions will be issued from the proper departments. The sur- 
veillance over territories of the colonies and over the seas is 
entrusted to military and naval authorities designated by the 
governors. 

Art. 3. No unauthorized device or means of aerial locomotion, 
for any reasons whatever, shall make flights over territories but 
shall descend immediately. Whenever they disregard signals, 
either over land or sea, to descend, any military officials or Gov- 
ernment agents which have been designated by the Government. 
are authorized to fire upon them, or use any other means found 
necessary to enforce the above orders. 



102 AIRCRAFT IN NEUTRAL PORTS 

Art. 4. The military apparatus and those privately authorized 
to fly shall carry some distinctive mark, which shall be easily 
visible from the earth, such marks to be established by proper 
regulations. 

Art. 5. The signals to be made to those aerial machines that do 
not carry such distinctive marks will be as follows : i. e., by wav- 
ing flags — either white or equally visible color — or by the firing of 
a gun or by the firing of rockets. Such signals will be repeated at 
frequent intervals. 

Commission of jurists, 1923. — Under the treaty of the 
Conference on the Limitation of Armament providing for 
the commission of jurists to consider the rules of warfare, 
the powers later agreed to limit the work of the commis- 
sion which assembled December 11, 1922, to rules relating 
to aerial warfare and the use of radio in time of war. 
The commission finished its work February 19, 1923, 
though it said if the " rules are approved and brought 
into force, it will be found expedient to make provision 
for their reexamination after a relatively brief term of 
years to see whether any revision is necessary." (1924 
N. W. C. Int. Law Documents, p. 97.) 

In the report of the commission of jurists it was said in 
regard to belligerent duties : 

To avoid any suggestion that it is on the neutral government 
alone that the obligation is incumbent to secure respect for its 
neutrality, article 39 provides that belligerent aircraft are under 
obligation to respect the rights of neutral powers and to abstain 
from acts within neutral jurisdiction which it is the neutral's 
duty to prevent. 

It wil be noticed that the article is not limited to mLitary 
aircraft ; in fact, the second phrase will apply only to belligerent 
aircraft of other categories, as it is they alone which may remain 
at liberty within neutral jurisdiction. All aircraft, however, 
including military, are bound to respect the rights of neutral 
powers. 

ARTICLE 39 

Belligerent aircraft are bound to respect the rights of neutral powers and 
to abstain within the jurisdiction of a neutral State from tho 
commission of any act which it is the duty of that State to prevent. 

The principle that belligerent military aircraft should not be 
allowed to enter or circulate in neutral jurisdiction met with 



EEPORT OF COMMISSION" OF JURISTS 103 

ready acceptance. It is in conformity with the rule adopted by 
the European States during the recent war. 

The immunities and privileges which article 17 confers on 
flying ambulances will enable the neutral State to admit them 
to its jurisdiction, if it sees fit. 

ABTICLE 40 

Belligerent military aircraft are forbidden to enter the jurisdiction of a 
neutral State. (Ibid. p. 131.) 

It will be noticed that article 39 applies to "belligerent 
aircraft " while article 40 applies to " belligerent military 
aircraft" only. Article 39 includes all aircraft entitled 
to fly the belligerent's flag. Article 40 includes " bellig- 
erent military aircraft " only, and does not cover flying 
ambulances, other public aircraft such as those engaged 
in the postal or police service, or private aircraft. 

Spaight says of recognizing in time of war rules which 
have prevailed in time of peace, 

In the first place, rules which have been agreed after careful 
consideration for times of 'peace ought also to be applicable to 
times of war unless, and except in so far as, they can be shown 
to be rendered unsuitable to the changed conditions which war brings 
about. In the second place, many signatory states are fairly 
certain to remain entirely outside the struggle in the event of a 
war, however great, and as between these states the convention 
will remain in force. It would obviously be inconvenient if the 
rules governing classification and marks applicable as between 
these nonbelligerent states were entirely inconsistent with those 
applicable as between them and the states to whom they stand in 
the relation of neutrals to belligerents. For these reasons the 
jurists at The Hague in 1923 followed so far as possible in their 
rules for the classification of aircraft those already laid down in 
the convention of 1919. (Air Power and War Eights, p. 92.) 

Switzerland and other States found it necessary during 
the World War to prohibit the entry of all aircraft within 
its jurisdiction. The possibility oif maintaining neu- 
trality in any other manner is doubtful when the nature 
of aircraft is considered. A night flight over a neutral 
territory makes it difficult to determine anything definite 
in regard to the aircraft, and even under favorable condi- 



104 AIRCRAFT IN NEUTRAL PORTS 

tions aerial control is not easy. If the neutral State is 
to be secure in the observance of its obligations, the safe 
procedure will probably be to prohibit the entrance of all 
aircraft, to require landing at designated places, or other- 
wise to assure itself of the character of each aircraft. 

There are the further problems arising in consequence 
of easy conversion of aircraft from private to public mili- 
tary service, or vice versa, which may give rise to compli- 
cations. Certain recent proposals for regulation of 
aerial navigation have not given these problems consid- 
eration. 

Aircraft on board vessel® of war. — Military aircraft on 
board vessels of war under most of the recent codes may 
be permitted to enter a foreign jurisdiction in time of 
peace or in time of war. Usually military aircraft are 
not permitted to fly freely over foreign territory, even in 
time of peace, and in time of war risks might be much 
greater. It has been maintained that the interpretation 
of the words " on board " should be that the entire sup- 
port of the aircraft should be the physical structure of 
the vessel of war. 

There has been some difference of opinion as to whether 
an aircraft carrier should be classed as a vessel of war. 
The treaty limiting naval armament of the Washington 
Conference, 1921-22, stated, "An aircraft carrier is de- 
fined as a vessel of war with a displacement in excess of 
10,000 tons (10,160 metric tons) standard displacement, 
designed for the specific and exclusive purpose of carry- 
ing aircraft." The principal naval powers accept the 
above definition, so that it may be said that at present an 
aircraft carrier is a vessel of war. 

Aircraft on board a vessel of war would under present 
conditions be regarded as a part of the fighting equip- 
ment of the vessel. As a torpedo might be a part of the 
equipment for sending a projectile through water, so 
aircraft might be similarly regarded for the air. Either 
might properly be classed as a part of the equipment of 



REPORT OF COMMISSION OP JURISTS 105 

the vessel for war. An aircraft carrier might be wholly or 
almost entirely equipped with aircraft, while a vessel of 
war of another type might have torpedoes, heavy guns, 
aircraft, etc. It might be presumed by a neutral that the 
torpedo, projectile, or aircraft would be separated from 
the vessel of war only for belligerent purposes, and that 
when separated from the vessel of war, the responsibility 
of the neutral in regard to them would be distinct from 
that for the vessel of war as a unit with its equipment on 
board. 

Report of Commission of Jurists, 1923. — The status of 
aircraft on vessels of war was considered by the commis- 
sion of jurists in 1922-23, and their report makes certain 
explanations in proposing article 41 : 

The customary rules of international law authorise the admis- 
sion of belligerent warships to neutral ports and waters. There 
is no obligation upon neutral- states to admit warships belonging 
to belligerent states, but it is not in general refused. The ad- 
mission of belligerent military aircraft, however, is prohibited 
by article 40, and account must therefore be taken of the fact 
that it has now become the practice for warships to have a certain 
number of aircraft assigned to them and that these aircraft 
usually rest on board the warship. While they remain on board 
the warship they form part of it, and should be regarded as such 
from the point of view of the regulations issued by the neutral 
states. They will therefore be allowed to enter the neutral juris- 
diction on the same footing as the warship on board which they 
rest, but they must remain on board the warship and must not 
commit any act which the warship is not allowed to commit 

ARTICLE 41 

Aircraft on board vessels of war, including aircraft carriers, shall be 
regarded as part of such vessels. (1924 N. W, C. Int. Law Doc. 
p. 132.) 

Conclusion of the report of the commission. — The re- 
port of the commission of jurists, 1923, in no way pre- 
vents the purchase of contraband as a commercial trans- 
action, and in this category would be aircraft fuel and 
aircraft parts. The supply of aircraft fuel or parts to a 
belligerent aircraft on a vessel in a neutral port would, 

88941—28 8 



106 AIRCRAFT IN" NEUTRAL PORTS 

however, not be such a transaction as is provided for in 
article 45, the comment upon which is as follows: 

No obligation rests on a neutral state to prevent the purchase 
by a belligerent government of articles of contraband from per- 
sons within the neutral jurisdiction. The purchase of contra- 
band under such conditions constitutes a commercial transaction 
which the neutral government is under no obligation to prevent, 
although the opposing belligerent may take such means as inter- 
national law authorises to intercept the delivery of the articles 
to his enemy. This principle has already been embodied in ar- 
ticle 7 of the convention concerning the rights and duties of neu- 
tral powers in land war (Convention V of 1907) and in article 
7 of the corresponding convention for maritime war (Convention 
XIII of 1907). To apply it to aerial warfare, the following 
article has been adopted : 

ARTICLE 45 

Subject to the provisions of article 46, a neutral power is not bound tc 
prevent the export or transit on behalf of a belligerent" of aircraft, 
parts of aircraft, or material, supplies, or munitions for aircraft. 
(1924 N. W. C. Int. Law Doc. p. 134.) 

The supply of war material within a neutral port does 
not leave the opposing belligerent any means to intercept. 
Therefore the obligation rests upon the neutral state to 
use the means at its disposal to prevent such supply. 
Similarly, the transfer of aircraft from one belligerent 
vessel to another in a neutral port would not be for any 
other than military reasons, and should be prevented. 

Neutral jurisdiction. — The laws of war on land in gen- 
eral provide that belligerent troops may not enter neutral 
territory, and that if belligerent troops enter upon neutral 
territory they are to be interned. Vessels of war are, how- 
ever, usually permitted innocent passage through neutral 
waters and entrance to neutral ports for a sojourn of not 
to exceed 24 hours. Belligerent vessels in neutral porta 
are, of course, secure from attack, even to a greater de- 
gree than in their own ports, and are under obligation 
not to abuse the hospitality for warlike purposes. 

The general discussion of the relations of neutrals, 
particularly in conflicts involving maritime jurisdiction, 



NEUTRAL JURISDICTION 107 

was set forth in the report of the Commission on the 
Eights and Duties of Neutral Powers in Naval War at 
The Hague Peace Conference in 1907. As translated 
this report in part reads: 

Land warfare regularly pursues its course on the territory of 
the belligerents. In exceptional circumstances alone is there any 
direct contact between the armed forces of a belligerent and the 
authorities of neutral countries ; when such contact does take 
place, as when troops flee into neutral territory, the situation is 
relatively simple; customary or written positive law applies in 
a well-defined manner. The case is otherwise in naval war. The 
war vessels of the belligerents can not always remain in the 
theatre of hostilities ; they need to enter harbours, and they do not 
always find harbours of their own countries nearby. Here geo- 
graphical situation exerts a powerful influence upon war, since the 
sbips of the belligerents will not need to resort to neutral ports to 
the same extent. 

Does it result from this that they have a right to unrestricted 
asylum there and may neutrals grant it to them? This is con- 
tested. The distinction just indicated is the natural consequence 
of what takes place in time of peace. Armed forces of one country 
never enter the territory of another state during peace. So when 
war breaks out there is no change, and they must continue to 
respect neutral territory as before. It is different with naval 
forces, which are in general permitted to frequent the ports of 
other states in time of peace. Should neutral states when war 
breaks out brusquely interrupt this practice of times of peace? 
Can they act at their pleasure, or does neutrality restrain their 
liberty of action? While it is understood that when belligerent 
troops penetrate neutral territory they are to be disarmed, because 
they are doing something which would not be tolerated in time of 
peace, the situation is different for the belligerent warship that 
arrives in a port which it has customarily been able to enter in 
time of peace and from which it might freely depart. 

What reception, then, is this ship to meet with? What shall it 
be allowed to do? The problem for the neutral state is to reconcile 
its right to give asylum to foreign ships with its duty of abstaining 
from all participation in hostilities. This reconciliation, which is 
for the neutral to make in the full exercise of its sovereignty, is 
not always easy, as is proved by the diversity of rules and of 
practice. In some countries the treatment to be accorded bellig- 
erent warships in neutral ports is set forth in permanent legisla- 
tion, e. g., the Italian code on the merchant marine ; in others rules 
are promulgated for the case of each particular war by proclama- 



108 AIRCRAFT IN NEUTRAL PORTS 

tions of neutrality. And not only do the rules promulgated by the 
several countries differ, but even the rules prescribed by a single 
country at different times are not identical ; moreover, sometimes 
rules are modified during the course of a war. 

The essential point is that everybody should know what to ex- 
pect, <?o that there will be no surprise. The neutral states urgently 
demand such precise rules as will, if observed, shelter them from 
accusations on the part of either belligerent. They decline obli- 
gations that would often be disproportionate to their means and 
their resources or the discharge of which would require on their 
part measures that are veritably inquisitorial. 

The starting point of the regulations ought to be the sovereignty 
of the neutral state, which can not be affected by the mere fact 
that a war exists in which it does not intend to participate. Its 
sovereignty should be respected by the belligerents, who can not 
implicate it in the war or molest it with acts of hostility. At the 
same time neutrals can not exercise their liberty as in times of 
peace ; they ought not to ignore the existence of war. By no act 
or omission on their part can they legally take a part in the 
operations of war; and they must moreover be impartial. (Re- 
ports of the Hague Peace Conferences, Carnegie Endowment, 
p, 839.) 

XIII Hague Convention, 1907. — Article 1 of XIII 
Hague Convention concerning the rights and duties of 
neutral powers in naval war provides : 

Belligerents are bound to respect the sovereign rights of neu- 
tral powers and to abstain, in neutral territory or neutral waters, 
from all acts which would constitute, on the part of the neutral 
powers which knowingly permitted them, a nonfulfillment of 
their neutrality. 

In commenting on the principle enunciated in article 1, 
the commission showed that it was not a principle arising 
in consequence of the existence of war but "inherent in 
the very existence of states," and, further, the commission 
said: 

The principle is applicable alike to land warfare and to naval 
warfare, and we are not surprised that the regulations elaborated 
by the second commission on the subject of the rights and duties 
of neutral states on land begin with the provision : " The terri- 
tory of neutral states is inviolable." 

Generally speaking, it may be said belligerents should abstain 
in neutral waters from any act which, if it were tolerated by the 



XIII HAGUE CONVENTION 109 

neutral state, would constitute failure in its duties of neutrality. 
It is important, 'however, to say here that a neutral's duty is not 
necessarily measured by a belligerent's duty ; and this is in 
harmony with the nature of the circumstances. An absolute 
obligation can be imposed upon a belligerent to refrain from 
certain acts in the waters of a neutral state ; it is easy for it and 
in all cases possible to fulfill this obligation whether harbours 
or territorial waters are concerned. On the other hand, the 
neutral state can not be obliged to prevent or check all the acts 
that a belligerent might do or wish to do, because very often the 
neutral state will not be in a position to fulfill such an obligation. 
It can not know all that is happening in its waters and it can not 
be in readiness to prevent it. The duty exists only to the degree 
that it can be known and discharged. This observation finds 
application in a certain number of cases. 

Sometimes it is asked whether a distinction should be made 
between harbours and territorial waters; such a distinction is 
recognized with respect to the duties of a neutral, which can not 
be held to an equal degree of responsibility for what takes place 
in harbours subject to the direct action of its authorities and 
what takes place in its territorial waters over which it has often 
only feeble control ; but the distinction does not exist with respect 
to the belligerent's duty, which is the same everywhere. (Ibid, 
p. 840.) 

This convention also makes other provisions in regard 
to the belligerent obligations, as in article 18 : 

Belligerent ships of war can not make use of neutral ports, 
roadsteads, or territorial waters for replenishing or increasing 
their supplies of war material or their armament, or for com- 
pleting their crews. 

Of this article 18 the commission in its report said : 

According to the second rule of Washington a neutral Govern- 
ment is bound not to permit or suffer either belligerent to make 
use of its ports or waters as the base of naval operations against 
the other, or for the purpose of the renewal or augmentation oi 
military supplies or arms, or the recruitment of men. 

All were agreed that this rule should be retained, and several 
proposals include it to a greater or less degree. The only dis- 
cussion was on the point whether it was necessary to mention 
territorial waters as well as ports and roadsteads. 

The affirmative was adopted by 8 votes (United States, Brazil, 
Spain, France, Great Britain, Italy, Japan, Turkey) ; Germany, 
Denmark, Norway, Netherlands, Russia, and Sweden did not vote. 



110 AIRCRAFT IN NEUTRAL PORTS 

It has been said that a practice forbidden in ports and roadsteads 
could not be permitted in territorial waters. This is particularly 
true because the point of view taken is that of what belligerents 
may not do. The provision is thus justified more easily than that 
of the Washington rule which speaks of the obligation of the 
neutral government. (Ibid. p. 858.) 

Transfer in neutral jurisdiction. — An aircraft on board 
a vessel of war or aircraft carrier is regarded as a part of 
such vessel as long a£ it remains on board, in the same 
manner as a gun would be so regarded. When it is 
separated from the vessel of war upon which it enters 
the neutral port it is no longer a part of that vessel. The 
exchange would not be made except to render the cruiser 
more efficient as a fighting vessel. If the transfer were 
to be allowed in the neutral port it could be with greater 
safety than on the high sea or even in a national port of 
the belligerent. If such transfers were to be allowed, a 
neutral port might become the rendezvous for aircraft 
carriers and cruisers for exchange of disabled and able 
aircraft, which in effect would be a base of military 
equipment. The report of the commission of jurists, 
1923, provides, in referring to what was formerly known 
as the rule of " due diligence " mention in article 46 : 

An exception to the principle that a neutral state is under no 
obligation to prevent the export of arms and war material, is found 
in the accepted rule of international law that neutral territory 
must not be utilised as a base of operations by a belligerent gov- 
ernment, and that the neutral state must therefore prevent the 
fitting out or departure from its jurisdiction of any hostile expe- 
dition intended to operate on behalf of one belligerent against the 
other. Such an expedition might consist of a single aeroplane, if 
manned and equipped in a manner which would enable it to 
take part in hostilities, or carrying on accompanied by the neces- 
sary elements of such equipment. Consequently, its departure 
under circumstances which would constitute the despatch of a 
hostile expedition, must be prevented by the neutral govern- 
ment. (1924 N. W. C. Int. Law Doc. p. 134.) 

Unseaworthy vessels of war. — Unseaworthy vessels of 
war may usually be repaired in a neutral port to make 
them again seaworthy. Even the boats of a vessel of 



WASHINGTON CONFERENCE 111 

war have been allowed necessary repairs. During the 
World War neutrals prescribed rules in regard to the 
sojourn of vessels of war for repairs. Brazil allowed 
vessels of war to remain longer than 24 hours " if the re- 
pairs necessary to render the ship seaworthy can not be 
made within that time," but in article 13 it was further 
provided : 

The belligerent warships are allowed to repair their damages in 
the ports and harbors of Brazil only to the extent of rendering 
them seaworthy, without in any wise augmenting their military 
power. The Brazilian naval authorities will ascertain the nature 
and extent of the proper repairs, which shall be made as promptly 
as possible. (1916 N. W. C. Int. Law Topics, p. 11.) 

Rule 13 of the neutrality proclamation of the United 
States relating to the Panama Canal Zone, November 13, 
1914, stated: 

The repair facilities and docks belonging to the United States 
and administered by the canal authorities shall not be used by a 
vessel of war of a belligerent, or vessels falling under rule 2, except 
when necessary in case of actual distress, and then only upon the 
order of the canal authorities and only to the degree necessary to 
render the vessel seaworthy. Any work authorized shall be done 
with the least possible delay. (Ibid. p. 99.) 

The ship's boats are necessary for transporting the per- 
sonnel to and from the vessel of war, for exercising the 
right of visit, and for other purposes not involving war- 
like action, and repair to such craft has been permitted in 
neutral ports as rendering the vessel of war seaworthy 
and not adding to its fighting strength. 

Washington Conference, 1921-22. — In the report of the 
subcommittee on aircraft which was submitted to the 
committee on limitation of armament, January 7, 1922, 
it was said in regard to the question of the use of military 
aircraft : 

It is necessary in the interests of humanity to lessen the 
chances of international friction, that the rules which should gov- 
ern the use of aircraft in war should be codified and be made 
the subject of international agreement. 



112 AIRCRAFT IN" NEUTRAL PORTS 

40. The matter has been considered by this committee in con- 
nection with a draft code of " Rules for aircraft in war " sub- 
mitted for remarks by the subcommittee on the laws of war. The 
subject appears to the committee to be one of extreme importance 
and one which raises far-reaching problems, legal, political, com- 
mercial, and military ; it requires therefore exhaustive discussion 
by a single committee in which experts on all these issues are 
assembled. 

The representatives of the United States and Japan on this 
committee are prepared to discuss the rules submitted from a 
technical point of view as provided for in the agenda under the 
paragraph on limitation of new types of military arms, but. the 
representatives of Great Britain, France, and Italy are not so 
prepared. They state that the time between receipt of the agenda 
of the conference and their date of sailing has not permitted that 
exhaustive discussion of the subject which would enable them to 
advance a national viewpoint on a matter which affects so many 
and varied interests. In some cases the national policy has not 
yet been determined. 

41. This committee recommends therefore that the question of 
the rules for aircraft in war be not considered at a conference 
in which all the members are not prepared to discuss so large a 
subject, but that the matter be postponed to a further conference 
which it is recommended be assembled for the purpose at a date 
and place to be agreed upon through diplomatic channels. (Con- 
ference on the Limitation of Armament, p. 774.) 

The final conclusion of the subcommittee was : 

Number and character. — The committee is of the opinion that 
it is not practicable to impose any effective limitations upon the 
numbers or characteristics of aircraft, either commercial or mili- 
tary, excepting in the single case of lighter-than-air craft. 

Use. — The committee is of the opinion that the use of aircraft 
in war should be governed by the rules of warfare as adapted 
to aircraft by a further conference which should be held at a later 
date. (Ibid. p. 780.) 

A resolution was adopted by the conference, February 
4, 1922, establishing a commission of jurists to consider 
amendment of the laws of war. It provided : 

The United States of America, the British Empire, France, 
Italy, and Japan have agreed : 

I. That a commission composed of not more than two members 
representing each of the above-mentioned powers shall be consti- 
tuted to consider the following questions: 



AIRCRAFT IN PEACE 113 

(a) Do existing rules of international law adequately cover 
new methods of attack or defense resulting from the introduction 
or development, since The Hagne Conference of 1907, of new 
agencies of warfare? 

(b) If not so, what changes in the existing rules ought to be 
adopted in consequence thereof as a part of the law of nations? 

II. That notices of appointment of the members of the commis- 
sion shall, within three months after the adjournment of the 
present conference, be transmitted to the Government of the 
United States of America which after consultation with the 
powers concerned will fix the day and place for the meeting of the 
commission. 

III. That the commission shall be at liberty to request assist- 
ance and advice from experts in international law and in land, 
naval, and aerial warfare. 

IV. That the commission shall report its conclusions to each 
of the powers represented in its membership. 

Those powers shall thereupon confer as to the acceptance of the 
report and the course to be followed to secure the consideration 
of its recommendations by the other civilized powers. (Ibid. p. 
1640.) 

It was also resolved by the conference : 

That it is not the intention of the powers agreeing to the 
appointment of a commission to consider and report upon the rules 
of international law respecting new agencies of warfare that the 
commission shall review or report upon the rules or declarations 
relating to submarines or to the use of noxious gases and chemi- 
cals already adopted by the powers in this conference. 

This last resolution left as the main problem for the 
commission of jurists that of aerial warfare, even though 
the treaty relating to the use of submarines and noxious 
gases was not ratified by all the powers. 

Status of rules as to aircraft in peace. — The rules for 
the use of aircraft in time of peace have gradually devel- 
oped with the progress of aviation. The convention for 
the regulation of aerial navigation, signed at Paris Octo- 
ber 13, 1919, stated generally accepted principles for the 
time of peace, and by article 38 provided: "In case of 
war the provisions of the present convention shall not 
affect the freedom of action of the contracting states, 
either as belligerents or as neutrals." The first article 



114 AIRCRAFT IN" NEUTRAL PORTS 

declared, however, that " the high contracting parties 
recognize that every power has complete and exclusive 
sovereignty in the air space above its territory." This 
being true in the time of peace would be unquestioned in 
the time of war. 

World War practice. — During the World War states 
exercised the right to exclude aircraft altogether. 

Switzerland made its position as a neutral clear in the 
ordinance of August 4, 1914 : 

17. As to aviation, attention will be given to what follows : 

(a) Balloons and aircraft not belonging to the Swiss Army can 
not rise and navigate in the aerial space situated above our terri- 
tory unless the persons ascending in the apparatus are furnished 
with a special authorization, delivered in the territory occupied by 
the army, by the commander of the army ; in the rest of the coun- 
try, by the Federal military department. 

(b) The passage of all balloons and aircraft coming from abroad 
into our aerial space is forbidden. It will be opposed if necessary 
by all available means and these aircraft will be controlled when- 
ever that appears advantageous. 

(c) In case of the landing of foreign balloons or aircraft, their 
passengers will be conducted to the nearest superior military 
commander who will act according to his instructions. The ap- 
paratus and the articles which it contains ought, in any case, to 
be seized by the military authorities or the police. The Federal 
military department or the commander of the army will decide 
what ought to be done with the personnel and materiel of a bal- 
loon or aircraft coming into our territory through force majeure, 
and when there appears to be no reprehensible intention or negli- 
gence. (1916 N. W. C. Int. Law Topics, p. 73.) 

The proclamation of the United States relating to the 
neutrality of the Panama Canal Zone, November 13, 1914, 
stated : 

Rule 15. Aircraft of a belligerent power, public or private, are 
forbidden to descend or arise within the jurisdiction of the United 
States at the Canal Zone, or to pass through the air spaces above 
the lands and waters within said jurisdiction. (Ibid. p. 99.) 

Aircraft on vessels of war. — It has been maintained 
that aircraft are analogous to the boats of a vessel of war, 
and may be used in transporting the personnel of the 



WORLD WAR PRACTICE 115 

vessel of war to and from shore in the same manner that 
the ship's boats are used. This might be true in some 
cases if conditions were favorable, and sometimes also it 
might be possible to use aircraft from the deck of a vessel 
to fly to the neighborhood of a merchant vessel at sea. 
At present, however, such is not the purpose for which 
space is given up to aircraft on board a vessel of war, 
and such is not the reason for the careful training of air- 
craft personnel. There would be no sound military argu- 
ment for carrying aircraft on vessels of war merely to 
take the place if conditions were favorable of the ship's 
boats. 

Fuel and supplies. — It has long been admitted and is 
embodied in many conventions and proclamations that 
fuel and supplies may be afforded in a neutral port, but 
not more often than once in three months. XIII Hague 
Convention, rights and duties of neutral powers in mari- 
time war, provided : 

Art. 19. Belligerent ships of war can not revictual in neutral 
ports or roadsteads except to complete their normal peace supply. 

Similarly these vessels can take only sufficient fuel to enable 
them to reach the nearest port of their own country. They may, 
on the other hand, take the fuel necessary to fill up their bunkers 
properly so called, when in neutral countries which have adopted 
this method of determining the amount of fuel to be supplied. 

If, in accordance with the law of the neutral power, ships are 
not supplied with coal until twenty-four hours after their arrival, 
the lawful duration of their stay is extended by twenty-four 
hours. 

Aet. 20. Belligerent ships of war which have taken fuel in a 
port of a neutral power can not within the succeeding three months 
replenish their supply in a port of the same power. 

The United States in 1914 issued proclamations of 
neutrality containing the following provisions in regard 
to supplies and fuel : 

No ship of war or privateer of a belligerent shall be permitted, 
while in any port, harbor, roadstead, or waters within the juris- 
diction of the United States, to take in any supplies except pro- 
visions and such other things as may be requisite for the sub- 



116 AIRCRAFT IN NEUTRAL PORTS 

sistence of her crew, and except so much coal only as may be 
sufficient to carry such vessel, if without any sail power, to the 
nearest port of her own country ; or in case the vessel is rigged 
to go under sail, and may also be propelled by steam power, then 
with half the quantity of coal which she would be entitled to 
receive if dependent upon steam alone, and no coal shall be again 
supplied to any such ship of war or privateer in the same or any 
other port, harbor, roadstead, or waters of the United States, 
without special permission, until after the expiration of three 
months from the time when such coal may have been last sup- 
plied to her within the waters of the United States, unless such 
ship of war or privateer shall, since last thus supplied, have 
entered a port of the government to which she belongs. (1916 
N. W. C. Int. Law Topics, p. 86.) 

Fighting strength. — It "had been well understood that 
repairs involving increase of fighting strength were not 
to be made in neutral ports. Before the World War, 
regulations and proclamations had made this evident. 
In the Danish royal order of December 20, 1912, concern- 
ing the neutrality of Denmark in case of war between 
foreign powers, it was stated, in article 5, a : 

All repair relating to the fighting capacity of the vessel is pro- 
hibited. The authorities concerned indicate which repairs to be 
accomplished and when completed the vessel leaves as soon as 
possible. 

CONCLUSION 

While the rules in regard to the treatment of aircraft 
and vessels bearing aircraft have not been fully agreed 
upon, it may be presumed that the general principles em- 
bodied in rules for the conduct of warfare will not be 
greatly modified. The application of accepted rules will 
necessarily be adapted to the changing methods and means 
of warfare. Neutrals will observe these rules when 
clearly set forth, and in absence of clean rules will prob- 
ably apply for regulation of conduct of aircraft, parallel 
and analogous rules to those for the regulation of other 
means of transportation and observation. The use of a 
neutral port for the purpose of increasing the fighting 
strength of a vessel has been in general prohibited. The 



SOLUTION 117 

transfer of aircraft in a neutral port from one vessel of 
war of X to another vessel of war of State X may be 
presumed to be to increase the fighting capacity of one of 
the vessels, and the same may be presumed in the trans- 
fer of aircraft fuel and parts. 

SOLUTION 

State Z may legally decline to permit within its juris- 
diction the transfer of aircraft or of aircraft fuel or 
parts. 



INDEX 

Page 
Admiralty Manual of Naval Prize Law. (See Manual of 
Naval Prize Law.) 

Advisory committee, Washington conference, 1922 63 

Aerial warfare: 

Commission of jurists, 1923 102 

Regulations > 89 

Aircraft 89, 103, 104 

Ambulances , 103 

Attitude of Interparliamentary Union 96 

Attitude toward declaration of 1 907 93 

Belligerent .__.___„ 105 

Belligerent military . 103 

Development 99 

Fuel 89, 105, 115 

Hague discussion, 1907 90 

In neutral ports . 89 

In peace 113 

Institute of International Law on 94 

Internment . 100 

Italian decree, 1914 101 

Number and character 112 

On board vessels of war 104, 114 

Panama Canal Zone 114 

Parts 89, 105 

Private 103 

Restrictions on use 93 

Rules „ 113 

Supplies 115 

Transfer 117 

Use _ _. 112 

World War practice 114 

Aircraft carrier 104 

American Civil War cases 6 

Angary 67 

Action in South America 87 

Albrecht's opinion 78 

British-Prussian correspondence, 1871 73 

British regulations, 1913 77 

Dana's opinion 71 

119 



120 INDEX 

Angary — Continued. Page 

Forms of 78 

Franco-Prussian War, 1870 73 

General 87 

German treaties. 72 

Law of Turkey, 1916 68 

Lawrence's opinion 71 

Origin__„ 65 

Railway material 65 

Taking of transportation 65 

Treaty provisions ; 73 

United States and Spain, 1902 72 

United States and Turkey, 1830 72 

World War practices 68 

Attack. (See Visit and search.) 

Balloons : Discharge of pro j ectiles 90 

"Balto," the 31, 32 

"Bermuda," the 7, 30, 38 

Blockade 8, 28, 35 

British 27 

British, in World War 25 

Notification 20 

Publication 20 

Bombardment, naval. (See Naval bombardment.) 

"Bonna," the 32,33 

British Admiralty Manual of Naval Prize Law. (See 
Manual of Naval Prize Law.) 

British claims, 1871: Settlement 77 

" Bundesrath," the 11 

Camouflage 59 

Capture 44, 48, 49, 62 

Carson, Sir Edward 35 

"Circassian," the 6 

Commerce destroyers 44, 48, 50, 51, 52, 53, 54, 62, 63 

Commission of jurists, 1923 102,112 

Conclusion of report 105 

Report 105 

Compensation 66 

Condemnation 62 

Conditional contraband. (See Contraband, conditional.) 

Consignees, official- 24 

Consignments, bona fide 13 

Continuous transportation „-_ 30 



INDEX 121 

Page 

Continuous voyage 1, 26, 28, 30 

Absolute contraband 16 

American Civil War 6 

Blockade 8 

British policy 35 

Coastwise trade 5 

Colonial trade 4 

Common stock 31 

Conclusion 37 

Conditional contraband 17, 30 

Contraband 7 

Declaration of London 15 

Divergent views ,. 16 

Doctrine of separation of liability 7 

Dutch trade 2 

Early nineteenth century 4 

Eighteenth century comment 2 

Extension of doctrine, 1914-1918 29 

German-British controversy, 1900 12 

Hall on 10 

Institute of International Law on 10 

Kent's opinion 6 

Lord StowelFs opinions 5 

Robinson's comment 6 

Substitution 33 

Treaty of 1674 2 

Ship 7 

South African War 11 

Ultimate destination 7, 8, 26, 30 

Vessel 8 

Contraband 27, 62, 106 

Absolute 16 

Conditional '_ 7, 22, 23, 24, 30 

Destination 20 

False papers 20 

Lists 20 

Relative 23 

Declaration of London 20 

American attitude 21 

American proposal, 1914 18 

Austrian attitude, 1914 19 

British attitude, 1914 19 

Continuous voyage 15 

88941—28 9 



122 INDEX 

Declaration of London — Continued. Page 

German attitude, 1914 19 

Indivisible whole 21 

Parliamentary discussion 17 

Regulations in 1914 17 

World War 18 

Destination. (See Contraband; see also Ultimate desti- 
nation.) 

Destruction 58 

Dutch ships: 

American attitude 84 

British attitude 79 

Eighteenth century comment 3 

Embargo 67 

Escape, attempt to 42 

Exports: From neutrals 28 

Fighting strength 116 

Food and raw material, report on 14 

Force majeure 67, 100 

Hague Convention: 

XIII. Rights and duties of neutral powers in naval 

war 108 

V. Convention respecting the rights and duties of 

neutral powers and persons in war on land 66, 106 

Hague regulations, 1899: Attitude toward 90 

11 Immanuel," the 5 

Imports: 

Increase to neutral countries 26 

Through neutral countries 29 

Institute of International Law 10, 94 

International Naval Conference, 1908-1909. (See Dec- 
laration of London) 15 

Kent, Chancellor 6 

"Kim," the 29,30,37 

Kirkwall practice , 31 

Knapp, Admiral: Comment 55 

Laws and customs of war on land 91, 93 

"Luna," the 5 

Manual of Naval Prize Law, British Admiralty 13, 14 

Manual of Naval Prize Law of 1866, British__i 12 

"Maria," the 59 

"Marianna Flora," the 59 

Merchant vessels 46, 48, 49, 54, 55, 58, 63 

Sinking of 50 

Naval bombardment 94 



INDEX 123 

Neutral government: Page 

Obligation 106 

Rights and duties 107 

Order in Council, British: 

August 20*, 1914 19 

October 29, 1914 22 

"Peterhoff," the 8 

Piracy 44, 58 

Place of safety. (See Safety, place of.) 

Proceed as directed 48 

Rationing system ,__ 29 

Repairs in neutral ports 116 

Report of the American delegation Washington Conference, 

1921-1922 57, 63 

Reprisals order, March 11, 1915 29 

Resistance 42, 62 

Restraints on commerce : 

British 22 

British discussion . 26 

Notes on 22 

Retaliation 60, 61 

Retaliatory measures 24 

Robinson, Christopher 5, 6 

Safety, place of 43, 50 

Seizure 42, 44, 48, 50, 55, 58 

Proceed as directed 43 

Ship. (See Merchant vessels and Vessels of war.) 

South African War 11 

"Springbok," the : criticism of decision. 8,9, 12 

Strict accountability 60 

Submarine treaty: 

Discussion 46 

Interpretation 40 

Preliminary draft 45 

Submarines 52, 53, 63 

Abolished 56 

Abolition 47 

American discussion 61 

German practice, 1914-1918 60 

Germany's declaration, February, 1915 29 

Report of American delegation 57, 63 

Treaty on noxious gases 39 

Washington Conference 39 

Substitution 33, 34 

Transfer: In neutral jurisdiction 110 



124 INDEX 

Treaties : Page 

German -72 

Of 1674 2 

Provisions of 73 

Submarine 39, 40, 45, 46 

United States and Spain, 1902__ 72 

United States and Turkey, 1830 72 

Twenty-four-hour rule 111 

Ultimate destination 7, 26, 30 

Unneutral service 62 

Vessels, merchant. {See Merchant vessels.) 
Vessels of war: 

Aircraft on 104, 114 

Repairs 111 

Soj ourn 111 

Unseaworthy 110 

Visit and search 41, 42, 50, 55, 58, 62, 63 

Attack 58 

Early opinions 59 

Order to submit to 42 

Proceed as directed 42 

War zone 60 

Washington Conference, 1921-22, on aircraft 111 

"William," the 5, 38 

"Zamora," the 83 

o